EXHIBIT 4.1
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INDENTURE
Dated as of February 2, 1998
Among
XXXXXX PACKAGING COMPANY
and
GPC CAPITAL CORP. I, as Issuers,
XXXXXX PACKAGING HOLDINGS COMPANY, as Guarantor,
and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
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Up to $325,000,000 aggregate principal amount of 8 3/4 % Senior
Subordinated Notes due 2008, Series A 8 3/4% Senior Subordinated Notes due
2008, Series B
Floating Interest Rate Subordinated Term Securities
("FIRSTS")sm* due 2008, Series A
Floating Interest Rate Subordinated Term Securities
(FIRSTS) Series B
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* FIRSTS is a Service xxxx of BT Xxxx. Xxxxx Incorporated
CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
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ss.310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.8, 7.10.
(b)...................................................... 7.8; 7.10;
13.2
(c)...................................................... N.A.
ss. 311(a)................................................. 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
ss.312(a)...................................................... 2.5
(b)...................................................... 13.3
(c)...................................................... 13.3
ss.313(a)...................................................... 7.6
(b)(1)................................................... 7.6
(b)(2)................................................... 7.6
(c)...................................................... 7.6; 13.2
(d)...................................................... 7.6
ss.314(a)...................................................... 4.11; 4.12;
13.2
(b)...................................................... N.A.
(c)(1)................................................... 13.4
(c)(2)................................................... 13.4
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 13.5
(f)...................................................... N.A.
ss.315(a)...................................................... 7.1(b)
(b)...................................................... 7.5; 13.2
(c)...................................................... 7.1(a)
(d)...................................................... 7.1(c)
(e)...................................................... 6.11
ss.316(a)(last sentence)....................................... 2.9
(a)(1)(A)................................................ 6.5
(a)(1)(B)................................................ 6.4
(a)(2)................................................... N.A.
(b)...................................................... 6.7
(c)...................................................... 10.4
ss.317(a)(1)................................................... 6.8
(a)(2)................................................... 6.9
(b)...................................................... 2.4
ss.318(a)...................................................... 13.1
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE................... 1
SECTION 1.1 Definitions.................................................... 1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.............. 27
SECTION 1.3 Rules of Construction.......................................... 27
ARTICLE II
THE SECURITIES............................................... 28
SECTION 2.1 Form and Dating................................................ 28
SECTION 2.2 Execution and Authentication................................... 28
SECTION 2.3 Registrar and Paying Agent..................................... 29
SECTION 2.4 Paying Agent To Hold Assets in Trust........................... 30
SECTION 2.5 Securityholder Lists........................................... 30
SECTION 2.6 Transfer and Exchange.......................................... 31
SECTION 2.7 Replacement Securities......................................... 31
SECTION 2.8 Outstanding Securities......................................... 32
SECTION 2.9 Treasury Securities............................................ 32
SECTION 2.10 Temporary Securities.......................................... 32
SECTION 2.11 Cancellation.................................................. 33
SECTION 2.12 Defaulted Interest............................................ 33
SECTION 2.13 CUSIP Number.................................................. 34
SECTION 2.14 Deposit of Moneys............................................. 34
SECTION 2.15 Book-Entry Provisions for Global Securities................... 34
SECTION 2.16 Registration of Transfers and Exchanges....................... 35
ARTICLE III
REDEMPTION................................................... 40
SECTION 3.1 Notices to Trustee............................................. 40
SECTION 3.2 Selection of Securities To Be Redeemed......................... 40
SECTION 3.3 Notice of Redemption........................................... 40
SECTION 3.4 Effect of Notice of Redemption................................. 41
SECTION 3.5 Deposit of Redemption Price.................................... 41
SECTION 3.6 Securities Redeemed in Part.................................... 42
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ARTICLE IV
COVENANTS.................................................... 42
SECTION 4.1 Payment of Securities.......................................... 42
SECTION 4.2 Maintenance of Office or Agency................................ 42
SECTION 4.3 Limitations on Transactions with Affiliates.................... 43
SECTION 4.4 Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock......................... 44
SECTION 4.5 Limitation on Asset Sales...................................... 47
SECTION 4.6 Limitation on Restricted Payments.............................. 49
SECTION 4.7 Existence...................................................... 53
SECTION 4.8 Payment of Taxes and Other Claims.............................. 53
SECTION 4.9 Notice of Defaults............................................. 53
SECTION 4.10 Maintenance of Properties and Insurance....................... 53
SECTION 4.11 Compliance Certificate........................................ 54
SECTION 4.12 Reports to Holders............................................ 54
SECTION 4.13 Waiver of Stay, Extension or Usury Laws....................... 55
SECTION 4.14 Change of Control............................................. 56
SECTION 4.15 Limitation on Other Senior Subordinated Indebtedness.......... 57
SECTION 4.16 Limitations on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries...... 57
SECTION 4.17 [Intentionally Omitted]....................................... 58
SECTION 4.18 Limitation on Liens........................................... 59
SECTION 4.19 Limitations on Guarantees of Indebtedness by
Restricted Subsidiaries.............................. 59
ARTICLE V
MERGERS; SUCCESSORS.......................................... 60
SECTION 5.1 Mergers, Sale of Assets, etc................................... 60
SECTION 5.2 Successor Substituted.......................................... 61
ARTICLE VI
DEFAULT AND REMEDIES......................................... 62
SECTION 6.1 Events of Default.............................................. 62
SECTION 6.2 Acceleration................................................... 64
SECTION 6.3 Other Remedies................................................. 64
SECTION 6.4 Waiver of Past Default......................................... 65
SECTION 6.5 Control by Majority............................................ 65
SECTION 6.6 Limitation on Suits............................................ 66
SECTION 6.7 Rights of Holders To Receive Payment........................... 66
SECTION 6.8 Collection Suit by Trustee..................................... 66
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SECTION 6.9 Trustee May File Proofs of Claim............................... 67
SECTION 6.10 Priorities.................................................... 67
SECTION 6.11 Undertaking for Costs......................................... 68
ARTICLE VII
TRUSTEE...................................................... 68
SECTION 7.1 Duties of Trustee.............................................. 68
SECTION 7.2 Rights of Trustee.............................................. 69
SECTION 7.3 Individual Rights of Trustee................................... 70
SECTION 7.4 Trustee's Disclaimer........................................... 71
SECTION 7.5 Notice of Defaults............................................. 71
SECTION 7.6 Reports by Trustee to Holders.................................. 71
SECTION 7.7 Compensation and Indemnity..................................... 71
SECTION 7.8 Replacement of Trustee......................................... 73
SECTION 7.9 Successor Trustee by Merger, etc............................... 74
SECTION 7.10 Eligibility; Disqualification................................. 74
SECTION 7.11 Preferential Collection of Claims Against Issuers............. 74
ARTICLE VIII
SUBORDINATION OF SECURITIES.................................. 75
SECTION 8.1 Securities Subordinated to Senior Indebtedness................. 75
SECTION 8.2 No Payment on Securities in Certain Circumstances.............. 75
SECTION 8.3 Payment Over of Proceeds upon Dissolution, etc................. 76
SECTION 8.4 Subrogation.................................................... 77
SECTION 8.5 Obligations of Issuers Unconditional........................... 78
SECTION 8.6 Notice to Trustee.............................................. 78
SECTION 8.7 Reliance on Judicial Order or Certificate of Liquidating Agent. 79
SECTION 8.8 Trustee's Relation to Senior Indebtedness...................... 80
SECTION 8.9 Subordination Rights Not Impaired by Acts or Omissions of
the Issuers or Holders of Senior Indebtedness........ 80
SECTION 8.10 Securityholders Authorize Trustee To Effectuate
Subordination of Securities.......................... 80
SECTION 8.11 This Article Not To Prevent Events of Default................. 81
SECTION 8.12 Trustee's Compensation Not Prejudiced......................... 81
SECTION 8.13 No Waiver of Subordination Provisions......................... 81
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SECTION 8.14 Subordination Provisions Not Applicable to Money Held in
Trust for Securityholders............................ 81
ARTICLE IX
DISCHARGE OF INDENTURE....................................... 81
SECTION 9.1 Termination of Issuers' Obligations............................ 82
SECTION 9.2 Application of Trust Money..................................... 83
SECTION 9.3 Repayment to Issuers........................................... 83
SECTION 9.4 Reinstatement.................................................. 84
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS.......................... 84
SECTION 10.1 Without Consent of Holders.................................... 84
SECTION 10.2 With Consent of Holders....................................... 85
SECTION 10.3 Compliance with Trust Indenture Act........................... 87
SECTION 10.4 Revocation and Effect of Consents............................. 87
SECTION 10.5 Notation on or Exchange of Securities......................... 87
SECTION 10.6 Trustee To Sign Amendments, etc............................... 88
ARTICLE XI
GUARANTEE.................................................... 88
SECTION 11.1 Unconditional Guarantee....................................... 88
SECTION 11.2 Severability.................................................. 89
SECTION 11.3 Limitation of Guarantor's Liability........................... 89
SECTION 11.4 Contribution.................................................. 89
SECTION 11.5 Execution of Guarantee........................................ 90
SECTION 11.6 Subordination of Subrogation and Other Rights................. 90
ARTICLE XII
SUBORDINATION OF GUARANTEE................................... 91
SECTION 12.1 Guarantee Obligations Subordinated to Senior Indebtedness..... 91
SECTION 12.2 No Payment in Certain Circumstances; Payment
Over of Proceeds upon Dissolution, etc............... 91
SECTION 12.3 Subrogation................................................... 93
SECTION 12.4 Obligations of Guarantors Unconditional....................... 94
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SECTION 12.5 Notice to Trustee............................................. 95
SECTION 12.6 Reliance on Judicial Order or Certificate of Liquidating Agent 95
SECTION 12.7 Trustee's Relation to Guarantor Senior Indebtedness........... 96
SECTION 12.8 Subordination Rights Not Impaired by Acts or
Omissions of Holdings, the Guarantors or Holders
of Senior Indebtedness............................... 96
SECTION 12.9 Securityholders Authorize Trustee To Effectuate
Subordination of Guarantee........................... 96
SECTION 12.10 This Article Not To Prevent Events of Default................ 97
SECTION 12.11 Trustee's Compensation Not Prejudiced........................ 97
SECTION 12.12 No Waiver of Guarantee Subordination Provisions.............. 97
ARTICLE XIII
MISCELLANEOUS................................................ 97
SECTION 13.1 Trust Indenture Act Controls.................................. 97
SECTION 13.2 Notices....................................................... 98
SECTION 13.3 Communications by Holders with Other Holders.................. 99
SECTION 13.4 Certificate and Opinion as to Conditions Precedent............100
SECTION 13.5 Statements Required in Certificate or Opinion.................100
SECTION 13.6 Rules by Trustee, Paying Agent, Registrar.....................100
SECTION 13.7 Governing Law.................................................101
SECTION 13.8 No Recourse Against Others....................................101
SECTION 13.9 Successors....................................................101
SECTION 13.10 Counterpart Originals........................................101
SECTION 13.11 Severability.................................................101
SECTION 13.12 No Adverse Interpretation of Other Agreements................102
SECTION 13.13 Legal Holidays...............................................102
SIGNATURES .........................................................S-1
EXHIBIT A-1 Form of Series A Fixed Rate Security.....................A-1
EXHIBIT A-2 Form of Series A Floating Rate Security..................
EXHIBIT B Form of Series B Fixed Rate Security.....................B-1
EXHIBIT B-2 Form of Series B Floating Rate Security..................
EXHIBIT C Form of Legend for Global Securities.....................C-1
EXHIBIT D Form of Transfer Certificate.............................D-1
EXHIBIT E Form of Transfer Certificate for Institutional
Accredited Investors.....................................E-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE dated as of February 2, 1998, among XXXXXX PACKAGING COMPANY, a
Pennsylvania limited partnership (the "Company"), GPC CAPITAL CORP. I, a
Delaware corporation ("CapCo I"), as issuers, XXXXXX PACKAGING HOLDINGS COMPANY,
a Pennsylvania limited partnership ("Holdings"), as guarantor, and UNITED STATES
TRUST COMPANY OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee"). Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Additional Interest" has the meaning provided in the Registration Rights
Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Affiliate Transaction" see Section 4.03.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means (i) the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions) of
property or assets (including by way of a sale and leaseback) of the Company or
any Restricted Subsidiary thereof (each referred to
in this definition as a "disposition") or (ii) the issuance or sale of Equity
Interests of any Restricted Subsidiary (whether in a single transaction or a
series of related transactions), in each case, other than: (a) a disposition of
Cash Equivalents or Investment Grade Securities or obsolete or worn out
equipment in the ordinary course of business; (b) the disposition of all or
substantially all of the assets of the Company in a manner permitted pursuant to
Section 5.01 of this Indenture or any disposition that constitutes a Change of
Control pursuant to this Indenture; (c) any Restricted Payment that is permitted
to be made, and is made, under Section 4.06 of this Indenture; (d) any
disposition of assets with an aggregate fair market value of less than $2.0
million; (e) any disposition of property or assets by a Restricted Subsidiary to
the Company or by the Company or a Restricted Subsidiary to a Restricted
Subsidiary; (f) any exchange of like property pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended, for use in a Similar Business; (g)
any financing transaction with respect to property built or acquired by the
Company or any of its Restricted Subsidiaries after the Issue Date including,
without limitation, sale-leasebacks and asset securitizations; (h) foreclosures
on assets; (i) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary; and (j) an issuance of Equity
Interests by CapCo I in connection with an IPO Reorganization.
"Bankruptcy Law" see Section 6.01.
"Blackstone" means Blackstone Capital Partners III Merchant Banking Fund
L.P. and its Affiliates.
"Board of Directors" means, as to any Person, the board of directors of
such Person (or, if such Person is a partnership, the board of directors or
other governing body of the general partner (or, if there is more than one
general partner of such person, the general partner or general partners which
may take the applicable action pursuant to the partnership agreement of such
Person) of such Person) or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
or the general partner, in the case of a limited partnership, or member, in the
case of a limited liability company, of such Person (or, if such Person is a
partnership, one of its general partners) to have been duly adopted by the Board
of Directors of such Person or the general partner, in the case of a limited
partnership, or member, in the case of a limited liability company, of such
Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means a day that is not a Saturday, a Sunday or a day on
which banking institutions in New York, New York are not required to be open.
"Calculation Agent" means the Person appointed by the Issuers to calculate
the
interest rate on the Floating Rate Securities, which shall initially be the
Trustee.
"CapCo I" means the Person named as "CapCo I" in the first paragraph of
this Indenture and its successors; provided that any such successor shall be a
corporation organized and existing under the laws of the United States or any
state thereof.
"CapCo II" means GPC Capital Corp. II, a Delaware corporation, and its
successors; provided that any such successor shall be a corporation organized
and existing under the laws of the United States or any state thereof.
"Capitalized Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized and reflected as a liability on
a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership of limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) U. S. dollars (and foreign currency exchanged
into U.S. dollars within 180 days), (ii) securities issued or directly and fully
guaranteed or insured by the U.S. Government or any agency or instrumentality
thereof, (iii) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any commercial bank having capital and surplus in
excess of $500.0 million, (iv) repurchase obligations for underlying securities
of the types described in clauses (ii) and (iii) entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper rated A-1 or the equivalent thereof by Xxxxx'x or S&P and in
each case maturing within one year after the date of acquisition, (vi)
investment funds investing 95% of their assets in securities of the types
described in clauses (i)-(v) above, (vii) readily marketable direct obligations
issued by any state of the United States of America or any political subdivision
thereof having one of the two highest rating categories obtainable from either
Xxxxx'x or S&P and (viii) Indebtedness or preferred stock issued by Persons with
a rating of "A" or higher from S&P or "A2" or higher from Xxxxx'x.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets
of the Company and its Restricted Subsidiaries, taken as a whole, to a Person
other than the Permitted Holders and their Related Parties, except in so far as
such transaction or transactions relate to an IPO Reorganization in accordance
with Article Five hereof; or (ii) the Company becomes aware (by way of a report
or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote,
written notice or otherwise) of the acquisition by any Person or group (within
the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of acquiring,
holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than the Permitted Holders and their Related Parties,
in a single transaction or in a related series of transactions, by way of
merger, consolidation or other business combination or purchase, of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision) of 50% or more of the total voting power of the Voting
Stock of the Company.
"Change of Control Date" see Section 4.14.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of, such Person's common equity, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common equity.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Consolidated Depreciation and Amortization Expense" means with respect to
any Person for any period, the total amount of depreciation and amortization
expense of such Person and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determ ined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus (a) provision for
taxes based on income or profits of such Person, or Permitted Tax Distributions
made by such Person, for such period deducted in computing Consolidated Net
Income, plus (b) Consolidated Interest Expense of such Person for such period to
the extent the same was deducted in calculating such Consolidated Net Income,
plus (c) Consolidated Depreciation and Amortization Expense of such Person for
such period to the extent such depreciation and amortization expense was
deducted in computing Consolidated Net Income, plus (d) any fees, expenses or
charges related to any Equity Offering, Permitted Investment, acquisition or
recapitalization or Indebtedness permitted to be incurred by this Indenture
(whether or not successful) and fees, expenses or charges related
to the transactions contemplated by the Recapitalization Agreement (including
fees to Blackstone), plus (e) the amount of any non-recurring charges (including
any one-time costs incurred in connection with acquisitions after the Issue
Date) deducted in such period in computing Consolidated Net Income, plus (f)
without duplication, any other non-cash charges reducing Consolidated Net Income
for such period (excluding any such charge which requires an accrual of a cash
reserve for anticipated cash charges for any future period), plus (g) the amount
of any minority interest expense deducted in calculating Consolidated Net
Income, plus (h) special charges and unusual items during any period ending on
or prior to the second anniversary of the Issue Date not to exceed $15.0 million
in the aggregate, plus (i) the amount of management, consulting monitoring and
advisory fees paid to Blackstone and its Affiliates during such period not to
exceed $1.0 million during any four quarter period, less, without duplication
(j) non-cash items increasing Consolidated Net Income of such Person for such
period (excluding any items which represent the reversal of any accrual of, or
cash reserve for, anticipated cash charges in any prior period).
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum, without duplication, of: (a) consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, to the extent such
expense was deducted in computing Consolidated Net Income (including
amortization of original issue discount, the interest component of Capitalized
Lease Obligations and net payments and receipts (if any) pursuant to Hedging
Obligations to the extent included in Consolidated Interest Expense and
excluding amortization of deferred financing fees), (b) consolidated capitalized
interest of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued and (c) on and after January 15, 2004, the interest expense of
Holdings with respect to the Holdings Senior Discount Notes.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income, of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis; provided, however, that (i) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto) shall be excluded, (ii) any increase in the cost of sales or other
incremental expenses resulting from purchase accounting in relation to any
acquisition, net of taxes, shall be excluded, (iii) the Net Income for such
period shall not include the cumulative effect of a change in accounting
principles during such period, (iv) any net after-tax income (loss) from
discontinued operations and any net after-tax gains or losses on disposal of
discontinued operations shall be excluded, (v) any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business (as determined in good faith by
the Company) shall be excluded, (vi) the Net Income for such period of any
Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included only to the
extent of the amount of dividends or distributions or other payments paid in
cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period, (vii)
the Net Income of any Person acquired in a pooling of interests transaction
shall not be included for any period prior to the date of such acquisition,
(viii) the Net Income for such period of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of its Net Income is not at the date
of determination permitted without any prior governmental approval (which has
not been obtained) or, directly or indirectly, by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute,
rule, or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or in similar distributions has been legally waived, and (ix) the Net Income for
such period of the Company and its Restricted Subsidiaries shall be decreased by
the amount of Permitted Tax Distributions during such period.
"Contingent Obligations" means, with respect to any Person, any obligation
of such Person guaranteeing any leases, dividends or other obligations that do
not constitute Indebtedness ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, or (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation against loss in respect thereof.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may give
notice to the Company.
"Custodian" see Section 6.01.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Defeasance Trust Payment" see Section 8.01.
"Depository" means, with respect to the Securities issued in the form of
one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Noncash Consideration" means the fair market value of noncash
consideration received by the Company or any of its Restricted Subsidiaries in
connection with
an Asset Sale that is so designated as Designated Noncash Consideration pursuant
to an Officers' Certificate, setting forth the basis of such valuation, less the
amount of cash or Cash Equivalents received in connection with a subsequent sale
of such Designated Noncash Consideration.
"Designated Preferred Stock" means preferred stock of the Company (other
than Disqualified Stock) that is issued for cash (other than to a Restricted
Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in clause (c) of Section 4.06 of
this Indenture.
"Designated Senior Indebtedness" means (i) Indebtedness under or in respect
of the New Credit Facility (except that any Indebtedness which represents a
partial refinancing of Indebtedness theretofore outstanding pursuant to the New
Credit Facility, rather than a complete refinancing thereof, shall only
constitute Designated Senior Indebtedness if such partial refinancing meets the
requirements of succeeding clause (ii)) and (ii) any other Indebtedness
constituting Senior Indebtedness which, at the time of determination, has an
aggregate principal amount or accreted value of at least $25.0 million and is
specifically designated in the instrument evidencing such Senior Indebtedness as
"Designated Senior Indebtedness" by the Issuers.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which, by its terms (or by the terms of any security into which
it is convertible or for which it is putable or exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, in each case prior to the maturity date of the
Securities; provided, however, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Company or any of
its Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company or such Subsidiary in order to satisfy applicable
statutory or regulatory obligations or as a result of such employee's death or
disability.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of common stock or
preferred stock of the Company or Holdings (other than Disqualified Stock),
other than (i) public offerings with respect to the Common Stock registered on
Form S-8 and (ii) any such public or private sale the proceeds of which have
been designated by the Company as an Excluded Contribution or Permanent
Qualified Equity Contributions.
"Event of Default" see Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Fixed Rate Securities" means the 8 3/4% Senior Subordinated Notes
due 2008, Series B, to be issued in exchange for the Initial Securities pursuant
to the Registration Rights Agreement.
"Exchange Floating Rate Securities" means the Floating Interest Rate
Subordinated Term Securities, due 2008 Series B, of the Issuers.
"Exchange Securities" means the Exchange Fixed Rate Securities and the
Exchange Floating Rate Securities.
"Excluded Contributions" means the net cash proceeds received by the
Company after the Issue Date from (a) contributions to its common equity capital
and (b) the sale (other than to a Subsidiary or to any management equity plan or
stock option plan or any other management or employee benefit plan or agreement
of the Company or any of its Subsidiaries) of Capital Stock (other than
Disqualified Stock) of the Company, in each case designated as Excluded
Contributions pursuant to an Officers' Certificate, the cash proceeds of which
are excluded from the calculation set forth in paragraph (c) of Section 4.06 of
this Indenture.
"Expiration Date" has the meaning set forth in the definition of "Offer to
Purchase" below.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"Final Maturity Date" means January 15, 2008.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
period, the ratio of Consolidated EBITDA of such Person for such period to the
Fixed Charges of such Person for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, guarantees or redeems any
Indebtedness (other than in the case of revolving credit borrowings, in which
case interest expense shall be computed based upon the average daily balance of
such Indebtedness during the applicable period) or issues or redeems preferred
stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is
being calculated but prior to the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of
the applicable four-quarter period. With respect to any Calculation Date that
occurs on or after January 15, 2003 and prior to January 15, 2004, the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to the
interest expense of Holdings with respect to the Holdings Senior Discount Notes
as if such interest expense was Consolidated Interest Expense of the Company.
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP) that have been made by the Company or
any of its Restricted Subsidiaries during the four-quarter reference period or
subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, discontinued operations, mergers
and consolidations (and the reduction of any associated fixed charge obligations
and the change in Consolidated EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary since the beginning
of such period) shall have made any Investment, acquisition, disposition,
discontinued operation, merger or consolidation that would have required
adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, discontinued operation, merger or
consolidation had occurred at the beginning of the applicable four-quarter
period. For purposes of this definition, whenever pro forma effect is to be
given to a transaction, the pro forma calculations shall be made as 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 on such Indebtedness shall be calculated as if the
rate in effect on the Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligations applicable to such
Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by a responsible financial or
accounting officer of the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period.
Interest on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Company
may designate. Any such pro forma calculation may include adjustments in the
reasonable determination of the Company as set forth in an Officers'
Certificate, to (i) reflect operating expense reductions
reasonably expected to result from any acquisition or merger or (ii) eliminate
the effect of any extraordinary accounting event with respect to any acquired
Person on Consolidated Net Income.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (a) Consolidated Interest Expense of such Person for such period and
(b) the product of (x) all cash dividend payments (excluding items eliminated in
consolidation) on any series of Disqualified Stock of such Person or its
Restricted Subsidiaries and (y) (A) if such Person is not a taxable entity for
U.S. federal income tax purposes, one, or (B) if such Person is an entity
taxable for U.S. federal income tax purposes, a fraction, the numerator of which
is one and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed as a
decimal.
"Floating Rate Securities" means the Initial Floating Rate Securities, the
Exchange Floating Rate Securities and the Floating Rate Private Exchange Notes
(as defined in the Registration Rights Agreement).
"Fixed Rate Securities" means the Initial Fixed Rate Securities, the Fixed
Rate Private Exchange Notes (as defined in the Registration Rights Agreement)
and the Exchange Fixed Rate Securities.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof.
"Funding Guarantor" see Section 11.04.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date. For the purposes of this
Indenture, the term "consolidated" with respect to any Person shall mean such
Person consolidated with its Restricted Subsidiaries, and shall not include any
Unrestricted Subsidiary.
"Global Securities" means one or more IAI Global Securities, Reg. S Global
Securities and 144A Global Securities.
"Government Securities" means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
Government Securities or a specific payment of principal of or interest on any
such Government Securities held by such custodian for the account of the holder
of such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Securities or the specific payment of principal of or
interest on the Government Securities evidenced by such depository receipt.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
"Guarantee" means any guarantee of the obligations of the Issuers under
this Indenture and the Securities by any Restricted Subsidiary in accordance
with the provisions of this Indenture. When used as a verb, "Guarantee" shall
have a corresponding meaning; provided that the term "Guarantee" shall not
include the Holdings Guarantee.
"Guarantor" means any Restricted Subsidiary that incurs a Guarantee;
provided that upon the release and discharge of such Restricted Subsidiary from
its Guarantee in accordance with this Indenture, such Restricted Subsidiary
shall cease to be a Guarantor; provided that the term "Guarantor" shall not
include Holdings.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange or interest rate swap agreements,
currency exchange or interest rate cap agreements and currency exchange or
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such Person against fluctuations in currency exchange or
interest rates or commodity prices.
"Holder" means the registered holder of any Security.
"Holdings" means the Person named as "Holdings" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Holdings" shall mean
such successor and shall include, in any event, CapCo II following any Holdings
IPO Reorganization.
"Holdings Guarantee" means the guarantee of the obligations of the
Issuers under this Indenture and the Securities by Holdings in accordance with
the provisions of this Indenture.
"Holdings IPO Reorganization" means the transfer of all or substantially
all of Holdings' assets (including, without limitation, all partnership or other
equity interests in the Company and Opco GP) and liabilities to CapCo II, and
the dissolution, liquidation or winding up of Holdings in connection with or in
contemplation of an initial public offering of the shares of common stock of
CapCo II).
"Holdings Issuers" means Holdings and CapCo II and their successors.
"Holdings Senior Discount Notes" means the 10 3/4 % Senior Discount Notes
of the Holdings Issuers issued under the Senior Discount Indenture.
"IAI Global Security" means a permanent global security in registered form
representing the aggregate principal amount of Securities sold to Institutional
Accredited Investors.
"IPO Reorganization" means the transfer of all or substantially all of the
Company's assets and liabilities to CapCo I upon the consummation of an initial
public offering of the shares of common stock of CapCo I.
"Indebtedness" means, with respect to any Person, (a) any indebtedness of
such Person, whether or not contingent, (i) in respect of borrowed money, (ii)
evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers' acceptances (or, without double counting, reimbursement
agreements in respect thereof), (iii) representing the balance deferred and
unpaid of the purchase price of any property (including Capitalized Lease
Obligations), except any such balance that constitutes a trade payable or
similar obligation to a trade creditor, in each case accrued in the ordinary
course of business or (iv) representing any Hedging Obligations, if and to the
extent of any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) that would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP, (b) to the extent not otherwise included, any obligation by such Person to
be liable for, or to pay, as obligor, guarantor or otherwise, the Indebtedness
of another Person (other than by endorsement of negotiable instruments for
collection in the ordinary course of business) and (c) to the extent not
otherwise included, Indebtedness of another Person secured by a Lien on any
asset owned by such Person (whether or not such Indebtedness is assumed by such
Person); provided, however, that Contingent Obligations incurred in the
ordinary course of business shall be deemed not to constitute Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Independent Financial Advisor" means an accounting, appraisal, investment
banking firm or consultant to Persons engaged in Similar Businesses of
nationally recognized standing that is, in the good faith determination of the
Company, qualified to perform the task for which it has been engaged.
"Initial Fixed Rate Securities" means the 8 3/4 % Senior Subordinated Notes
due 2008, Series A, of the Issuers.
"Initial Securities" means the Initial Fixed Rate Securities and the
Initial Floating Rate Securities.
"Initial Floating Rate Securities" means the Floating Interest Rate
Subordinated Term Securities, due 2008, Series A, of the Issuers.
"Initial Purchasers" means BT Alex. Xxxxx Incorporated, Bankers Trust
International plc, Lazard Freres & Co. LLC and Salomon Brothers Inc.
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
any liquidation, dissolution or winding up of such Person, or any bankruptcy,
reorganization, insolvency, receivership or similar proceeding with respect to
such Person, whether voluntary or involuntary.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, with respect to any Securities, the sum of any cash
interest and any Additional Interest on such Securities.
"Interest Payment Date" means each semiannual interest payment date on
January 15 and July 15 of each year, commencing July 15, 1998.
"Interest Record Date" for the interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the January 1 or
July 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Investment Grade Securities" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents), (ii) debt securities or
debt instruments with a rating of BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such rating by such rating organization, or, if no
rating of S&P or Moody's then exists, the equivalent of such rating by any other
nationally recognized securities rating agency, but excluding any debt
securities or
instruments constituting loans or advances between and among the respective
Company Issuers and their respective Subsidiaries, and (iii) investments in any
fund that invests exclusively in investments of the type described in clauses
(i) and (ii) which fund may also hold immaterial amounts of cash pending
investment and/or distribution.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans (including
guarantees), advances or capital contributions (excluding accounts receivable,
trade credit, advances to customers, commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes thereto) of such
Person in the same manner as the other investments included in this definition
to the extent such transactions involve the transfer of cash or other property.
For purposes of the definition of "Unrestricted Subsidiary" and Section 4.06 of
this Indenture, (i) "Investments" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market value of
the net assets of a 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 equal to 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 (ii) 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 Company.
"Investor LP" means BMP/Xxxxxx Holdings Corporation, a Delaware
corporation..
"Issue Date" means the closing date for the sale and original issuance of
Securities under this Indenture.
"Issuers" means the Company and CapCo I.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction);
provided that in no event shall an operating lease be deemed to constitute a
Lien.
"Management Group" means the group consisting of the executive officers of
the Company.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
Designated Noncash Consideration received in any Asset Sale), net of the direct
costs relating to such Asset Sale and the sale or disposition of such Designated
Noncash Consideration (including, without limitation, legal, accounting and
investment banking fees, and brokerage and sales commissions), and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements related thereto), amounts required
to be applied to the repayment of principal, premium (if any) and interest on
Indebtedness required (other than required by clause (i) of the second paragraph
of Section 4.05 of this Indenture) to be paid as a result of such transaction
and any deduction of appropriate amounts to be provided by the Company as a
reserve in accordance with GAAP against any liabilities associated with the
asset disposed of in such transaction and retained by the Company after such
sale or other disposition thereof, including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
such transaction.
"New Credit Facility" means that certain credit facility among Bankers
Trust Company, Holdings and certain of its Subsidiaries and affiliates
and the lenders from time to time party thereto, together with any related
documents, instruments and agreements executed in connection therewith
(including, without limitation, any guaranty agreements and security documents),
in each case as such credit facility and related documents, instruments and
agreements may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings thereunder or adding
additional obligors or guarantors thereunder) all or any portion of the
Indebtedness under such credit facility or any successor or replacement credit
facility and whether by the same or any other agent, lender or group of lenders.
"Obligations" means all obligations for principal, interest, penalties,
fees, indemnifications, reimbursements (including, without limitation,
reimbursement obligations with
respect to letters of credit and banker's acceptances), damages and other
liabilities payable under the documentation governing any Indebtedness; provided
that Obligations with respect to the Securities shall not include fees or
indemnifications in favor of the Trustee and other third parties other than the
holders of the Securities.
"Offer" has the meaning set forth in the definition of "Offer to Purchase"
below.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
behalf of the Issuers by first-class mail, postage prepaid, to each holder at
his address appearing in the register for the Securities on the date of the
Offer offering to purchase up to the principal amount of Securities specified in
such Offer at the purchase price specified in such Offer (as determined pursuant
to this Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase,
which shall be not less than 30 days nor more than 60 days after the date of
such Offer, and a settlement date (the "Purchase Date") for purchase of
Securities to occur no later than three Business Days after the Expiration Date.
The Issuers shall notify the Trustee at least five Business Days (or such
shorter period as is acceptable to the Trustee) prior to the mailing of the
Offer of the Issuers' obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Issuers or, at the Issuers' request, by the Trustee in
the name and at the expense of the Issuers. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender Securities
pursuant to the Offer to Purchase. The Offer shall also state: (1) the Section
of this Indenture pursuant to which the Offer to Purchase is being made; (2) the
Expiration Date and the Purchase Date; (3) the aggregate principal amount of the
outstanding Securities offered to be purchased by the Issuers pursuant to the
Offer to Purchase (including, if less than 100%, the manner by which such amount
has been determined pursuant to the Section of this Indenture requiring the
Offer to Purchase) (the "Purchase Amount"); (4) the purchase price to be paid by
the Issuers for each $1,000 aggregate principal amount of Securities accepted
for payment (as specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities registered
in the name of such Holder and that any portion of a Security tendered must be
tendered in an integral multiple of $1,000 principal amount; (6) the place or
places where Securities are to be surrendered for tender pursuant to the Offer
to Purchase; (7) that interest on any Security not tendered or tendered but not
purchased by the Issuers pursuant to the Offer to Purchase will continue to
accrue; (8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date; (9) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Issuers or the
Trustee so require, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in
writing); (10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Issuers (or the Paying Agent) receives, not later
than the close of business on the fifth Business Day next preceding the
Expiration Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender; (11)
that (a) if Securities in an aggregate principal amount less than or equal to
the Purchase Amount are duly tendered and not withdrawn pursuant to the Offer to
Purchase, the Issuers shall purchase all such Securities and (b) if Securities
in an aggregate principal amount in excess of the Purchase Amount are tendered
and not withdrawn pursuant to the Offer to Purchase, the Issuers shall purchase
Securities having an aggregate principal amount equal to the Purchase Amount in
accordance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if not so listed, on a pro rata
basis, by lot or by such other method as the Trustee shall deem fair and
appropriate (with such adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 principal amount or integral multiples
thereof shall be purchased); and (12) that in the case of any Holder whose
Security is purchased only in part, the Issuers shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with
the provisions above pertaining to any Offer.
"Officer" of any Person means the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President (whether or
not such title is preceded or followed by one or more words or phrases), the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary
of such Person.
"Officers' Certificate" of any Person means a certificate signed on behalf
of such Person or the general partner, in the case of a limited partnership, or
member, in the case of a limited liability company, of such Person by the
Chairman of the Board, the President, any Executive Vice President, Senior Vice
President or Vice President (whether or not such title is preceded or followed
by one or more words or phrases) and by the Treasurer or any Assistant Treasurer
or the Secretary or any Assistant Secretary of such Person, that meets the
requirements set forth in Sections 13.04 and 13.05 of this Indenture.
"144A Global Security" means a permanent global security in registered form
representing the aggregate principal amount of Securities sold in reliance on
Rule 144A.
""Opco GP" means GPC Opco GP LLC, a Delaware limited liability company and
its successors.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuers or the Trustee.
"Pari Passu Indebtedness" means with respect to the Securities or a
Guarantee, Indebtedness which ranks pari passu in right of payment to the
Securities or such Guarantee, as the case may be.
"Participant" has the meaning set forth in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Blockage Notice" see Section 8.02.
"Payment Blockage Period" see Section 8.02.
"Permanent Qualified Equity Contributions" means net cash proceeds to the
Company in form of contributions to the common equity capital of the Company or
from the sale (other than to a Subsidiary of the Company or to any management
equity plan or stock option plan or any other management or employee benefit
plan of the Company or any of its Subsidiaries) of Capital Stock (other than
Disqualified Stock) of the Company, in each case designated as Permanent
Qualified Equity Contributions pursuant to an Officers' Certificate, the cash
proceeds of which are excluded from the calculation set forth in paragraph (c)
of Section 4.06 of this Indenture.
"Permitted Holders" means Blackstone and any of its Affiliates.
"Permitted Investments" means (a) any Investment in the Company or any
Restricted Subsidiary; (b) any Investment in cash and Cash Equivalents or
Investment Grade Securities; (c) any Investment by the Company or any Restricted
Subsidiary in a Person that is a Similar Business if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary or (ii) such Person,
in one transaction or a series of related transactions, is merged, consolidated
or amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary; (d)
any Investment in securities or other assets not constituting cash or Cash
Equivalents and received in connection with an Asset Sale made pursuant to
Section 4.05 of this Indenture or any other disposition of assets not
constituting an Asset Sale; (e) any Investment existing on the Issue Date; (f)
advances to
employees not in excess of $10.0 million outstanding at any one time, in the
aggregate; (g) any Investment acquired by the Company or any of its Restricted
Subsidiaries (i) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or (ii) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with respect to
any secured Investment or other transfer of title with respect to any secured
Investment in default; (h) Hedging Obligations permitted under clause (j) of
Section 4.04 of this Indenture; (i) loans and advances to officers, directors
and employees for business-related travel expenses, moving expenses and other
similar expenses, in each case incurred in the ordinary course of business; (j)
any Investment in a Similar Business (other than an Investment in an
Unrestricted Subsidiary) having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (j) that are at that
time outstanding, not to exceed 10% of Total Assets at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value); (k)
Investments the payment for which consists of Equity Interests of the Company
(other than Disqualified Stock); provided, however, that such Equity Interests
will not increase the amount available for Restricted Payments under clause (c)
of Section 4.06 of this Indenture; (l) additional Investments having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (l) that are at that time outstanding, not to exceed
$10.0 million (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value); (m) any
transaction to the extent it constitutes an Investment that is permitted by and
made in accordance with the provisions of clauses (iii) and (xi) of the second
paragraph of Section 4.03 of this Indenture; (n) any Investment by Restricted
Subsidiaries in other Restricted Subsidiaries; (o) Investments consisting of the
licensing or contribution of intellectual property pursuant to joint marketing
arrangements with other Persons; and (p) Investments consisting of purchases and
acquisitions of inventory, supplies, materials and equipment or licenses or
leases of intellectual property, in any case, in the ordinary course of
business.
"Permitted Junior Securities" shall mean debt or equity securities of an
Issuer or any successor corporation issued pursuant to a plan of reorganization
or readjustment of an Issuer that are subordinated to the payment of all then
outstanding Senior Indebtedness at least to the same extent that the Securities
are subordinated to the payment of all Senior Indebtedness on the Issue Date, so
long as (i) the effect of the use of this defined term in Article Eight or
Twelve of this Indenture is not to cause the Securities to be treated as part of
(a) the same class of claims as the Senior Indebtedness or (b) any class of
claims pari passu with, or senior to, the Senior Indebtedness for any payment or
distribution in any case or proceeding or similar event relating to the
liquidation, insolvency, bankruptcy, dissolution, winding up or reorganization
of an Issuer and (ii) to the extent that any Senior Indebtedness outstanding on
the date of consummation of any such plan or reorganization or readjustment is
not paid in full in cash on such date, either
(a) the holders of any such Senior Indebtedness not so paid in full in cash have
consented to the terms of such plan or reorganization or readjustment of (b)
such holders receive securities which constitute Senior Indebtedness and which
have been determined by the relevant court to constitute satisfaction in full in
money or money's worth of any Senior Indebtedness not paid in full in cash.
"Permitted Liens" means the following types of Liens:
(i) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such proceedings may
be initiated shall not have expired;
(ii) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or asset
which is not leased property subject to such Capitalized Lease Obligation;
(iii) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary acquired in the ordinary course of
business; provided, however, that (A) the related purchase money
Indebtedness shall not exceed the cost of such property or assets and shall
not be secured by any property or assets of the Company or any Restricted
Subsidiary other than the property and assets so acquired and (B) the Lien
securing such Indebtedness shall be created within 180 days of such
acquisition;
(iv) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(v) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(vi) Liens securing Indebtedness under Hedging Obligations;
(vii) Liens securing Acquired Indebtedness incurred in accordance with
the Section 4.04 of this Indenture; provided that (A) such Liens secured
such Acquired Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary
thereof and were not granted in connection with, or in anticipation of, the
incurrence of such Acquired Indebtedness by the Company or
a Restricted Subsidiary thereof and (B) such Liens do not extend to or
cover any property or assets of the Company or any of the Restricted
Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or such Restricted Subsidiary and are no more
favorable to the lienholders than those securing the Acquired Indebtedness
prior to the incurrence of such Acquired Indebtedness by the Company or
such Restricted Subsidiary;
(viii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;
(ix) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters of
credit issued in the ordinary course of business, consistent with past
practice in connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
and
(x) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements, including
rights of offset and setoff.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"Physical Securities" means one or more certificated Securities in
registered form.
"Principal" of a debt security means the principal of the security, plus,
when appropriate, the premium, if any, on the security.
"Private Exchange Securities" means the Private Exchange Fixed Rate Notes
and the Private Exchange Floating Rate Notes, each as defined in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Initial Securities in the form set forth on Exhibit A hereto.
"Purchase Amount" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Purchase Agreement" means the Purchase Agreement dated as of January 23,
1998 by and among the Issuers, the Holdings Issuers and the Initial Purchasers.
"Purchase Date" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Purchase Price" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Qualified Institutional Buyer" or "QIB" means a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act.
"Recapitalization" means the consummation of the transactions which are
contemplated to occur on or prior to the Closing under the Recapitalization
Agreement.
"Recapitalization Agreement" means the Agreement and Plan of
Recapitalization, Redemption and Purchase, dated as of December 18, 1997 by and
among Holdings, BMP/Xxxxxx Holdings Corporation and the other parties thereto.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Security annexed hereto as Exhibit A.
"Reg. S Global Security" means a global security in registered form
representing the aggregate principal amount of Securities sold pursuant to
Regulation S under the Securities Act. "Registrar" see Section 2.03.
"Registration" means a registered exchange offer for the Securities by the
Issuers or other registration of the Securities under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of February 2, 1998 by and among the Issuers, Holdings and the Initial
Purchasers.
"Related Parties" means any Person controlled by a Permitted Holder,
including any partnership of which a Permitted Holder or any of its Affiliates
is the general partner.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Indebtedness; provided that
if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Indebtedness in respect of any Designated
Senior Indebtedness.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payments" see Section 4.06.
"Restricted Security" has the meaning set forth in Rule 144(a)(3) under the
Securities Act; provided, however, that the Trustee shall be entitled to request
and conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is not then an Unrestricted Subsidiary; provided,
however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an
Unrestricted Subsidiary, such Subsidiary shall be included in the definition of
"Restricted Subsidiary."
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Securities, the Private
Exchange Securities and the Unrestricted Securities treated as a single class of
securities, as amended or supplemented from time to time in accordance with the
terms of this Indenture.
"S&P" means Standard and Poor's Ratings Group.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Senior Discount Indenture" means the Indenture dated as of February 2,
1998 among the Holdings Issuers and The Bank of New York, as trustee.
"Senior Indebtedness" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness of Holdings, the Issuers or any Guarantor, whether outstanding on
the Issue Date or thereafter created, incurred or assumed, unless, in the case
of any particular Indebtedness, the instrument creating or evidencing the same
or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Holdings Guarantee,
the Securities or the Guarantee of such Guarantor. Without limiting the
generality of the foregoing, "Senior Indebtedness" shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, to the extent such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, (x) all monetary obligations (including guarantees thereof) of every nature
of Holdings, the Issuer or a Guarantor under the New Credit Facility, including,
without limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses, indemnities and Hedging
Obligations related thereto, in each case whether outstanding on the Issue Date
or thereafter incurred and (y) all monetary obligations (including guarantees
thereof) of every nature of the Issuers, Holdings and any Guarantor with respect
to Hedging Obligations, in each case whether outstanding on the Issue Date or
thereafter incurred. Notwithstanding the foregoing, "Senior Indebtedness" shall
not include (i) any Indebtedness of Holdings, an Issuer or a Guarantor to a
Subsidiary thereof, (ii) Indebtedness to, or guaranteed on behalf of, any
director, officer or employee of Holdings, an Issuer or a Guarantor or any
Subsidiary thereof (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services (other than amounts
incurred under the New Credit Facility), (iv) Indebtedness represented by
Disqualified Stock, (v) any liability for federal, state, local or other taxes
owed or owing, (vi) that portion of any Indebtedness incurred in violation of
Section 4.04 of this Indenture (but, as to any such obligation, no such
violation shall be deemed to exist for purposes of this clause (vi) if the
holder(s) of such obligation or their representative shall have received an
Officers' Certificate of an Issuer to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit Indebtedness, that
the incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made would not) violate such Section), (vii)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to
Holdings, an Issuer or a Guarantor, as the case may be, and (viii) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of Holdings, an Issuer or a Guarantor, as the case may
be.
"Significant Restricted Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" of the Company as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the date hereof.
"Similar Business" means a business the majority of whose revenues are
derived from the manufacture, marketing or sale of containers or any business or
activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto.
"Subordinated Indebtedness" means with respect to the Securities or a
Guarantee, any Indebtedness of the Company or a Guarantor, as the case may be,
which is by its terms subordinated in right of payment to the Securities or the
Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association, or other business entity (other than a partnership) of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof and (ii) any partnership,
joint venture, limited liability company or similar entity of which (x) more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise and (y) such
Person or any Wholly Owned Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of this Indenture (except as
provided in Section 10.03) until such time as the Indenture is qualified under
the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA.
"Total Assets" means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust department (or
any successor group of the Trustee) including any vice president, assistant vice
president, assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"United States Government Obligations" means direct non-callable
obligations of the United States for the payment of which the full faith and
credit of the United States is pledged.
"Unrestricted Securities" means one or more Securities that do not and are
not required to bear the Private Placement Legend in the form set forth in
Exhibit A-1 hereto or Exhibit A-2 hereto, as the case may be, including, without
limitation, the Exchange Securities and any Securities registered under the
Securities Act pursuant to and in accordance with the Registration Rights
Agreement.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company which at
the time of determination is an Unrestricted Subsidiary (as designated by the
Board of Directors of the Company, as provided below) and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Subsidiary of the Company (including any existing Subsidiary and any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Equity Interests of, or
owns, or holds any Lien on any property of, the Company or any Subsidiary
thereof (other than any Subsidiary of the Subsidiary to be so designated),
provided that each Subsidiary to be so designated and its Subsidiaries have not
at the time of designation, and do not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries. The Board of Directors of the
Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that, immediately after giving effect to such designation, (i) the
Company could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described Section 4.04 of this Indenture or
(ii) the Fixed Charge Coverage Ratio for the Company and its Restricted
Subsidiaries would be greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation. Any such designation by the Board of
Directors of the Company shall be notified by the Company to the Trustee by
promptly filing with the Trustee a copy of the board resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
or Disqualified Stock, as the case may be, at any date, the quotient obtained by
dividing (i) the
sum of the products of the number of years from the date of determination to the
date of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Disqualified Stock multiplied
by the amount of such payment, by (ii) the sum of all such payments.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary that is
a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
100% of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities, the Holdings Guarantee and the
Guarantees.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, Holdings, a
Guarantor or any other obligor on the 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 and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles in effect from time
to time, and any other reference in this Indenture to "generally accepted
accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
The Initial Fixed Rate Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A-1 hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Initial Floating Rate Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A-2 hereto, which is
hereby incorporated in and expressly made part of this Indenture. The Exchange
Fixed Rate Securities and the Trustee's certificate of authentication thereof
shall be substantially in the form of Exhibit B-1 hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Floating Rate Securities and the Trustee's certificate of authentication thereof
shall be substantially in the form of Exhibit B-2 hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Issuers shall approve the forms of the Securities and any notation,
legend or endorsement on them. Each Security shall be dated the date of its
issuance and shall show the date of its authentication. Global Securities shall
bear the legend set forth in Exhibit C hereto. The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository,
as hereinafter provided.
SECTION 2.2 Execution and Authentication.
Two Officers, including no more than one signing solely as Assistant
Secretary, shall sign, or one Officer (other than as an Assistant Secretary)
shall sign and the Secretary or an Assistant Secretary (each of whom shall, in
each case, have been duly authorized by all requisite corporate actions) shall
attest to such Officer's signature, the Securities for each of the Issuers by
manual or facsimile signature. If an Officer whose signature is on a Security
was an Officer at the time of such execution but no longer holds that office at
the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
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 (i) Initial Securities for original
issue in an aggregate principal amount not to exceed $325,000,000, (ii) Private
Exchange Securities from time to time only in exchange for a like principal
amount of the same type of Initial Securities and (iii) Unrestricted Securities
from time to time (A) in exchange for a like principal amount of the same type
of Initial Securities or a like principal amount of the same type of Private
Exchange Securities or (B) as the Issuers may determine in accordance with this
Indenture, in each case upon a written order of each of the Issuers in the form
of an Officers' Certificate. Each such written order shall specify the amount of
and the type of Securities to be authenticated and the date on which the
Securities are to be authenticated, whether the Securities are to be Initial
Securities, Private Exchange Securities or Unrestricted Securities and whether
the Securities are to be issued as Physical Securities or Global Securities and
such other information as the Trustee may reasonably request. The aggregate
principal amount of Securities outstanding at any time may not exceed
$325,000,000, except as provided in Sections 2.07 and 2.08. Notwithstanding the
foregoing, all Securities issued under this Indenture shall vote and consent
together on all matters (as to which any of such Securities may vote or consent)
as one class and no series of Securities will have the right to vote or consent
as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Issuers to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Issuers and Affiliates of the
Issuers.
The Securities shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the Borough of Manhattan,
The City of New York, where (a) Securities may be presented or surrendered for
registration of transfer or for exchange (the "Registrar"), (b) Securities may
be presented or surrendered for payment (the "Paying Agent") and (c) notices and
demands in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Issuers, upon notice to the Trustee, may appoint one or more co-
Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. Except as provided herein, the Company,
Holdings or any Guarantor may act as Paying Agent, Registrar or co-Registrar.
The Issuers shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Issuers shall notify the Trustee of the name and address of
any such Agent. If the Issuers fail to maintain a Registrar or Paying Agent, or
fail to give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.07.
The Issuers initially appoint the Trustee as Registrar and Paying Agent
until such time as the Trustee has resigned or a successor has been appointed.
SECTION 2.4 Paying Agent To Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest on, the Securities, and shall notify the Trustee of any Default
by the Issuers in making any such payment. The Issuers at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Issuers to the Paying Agent (if other than an
Issuer), the Paying Agent shall have no further liability for such assets. If an
Issuer, Holdings, any Guarantor or any of their respective Affiliates acts as
Paying Agent, it shall, on or before each due date of the principal of or
interest on the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
SECTION 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the
Trustee at least five days before each Interest Record Date and at such other
times as the Trustee may request in writing a list as of such date and in such
form as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.6 Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Issuers and the Registrar or co- Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Issuers shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith payable by the transferor of such Securities (other than any such
transfer taxes or other governmental charge payable upon exchanges or transfers
pursuant to Section 2.02, 2.10, 3.06, 4.05, 4.14, or 10.05). The Registrar or
co-Registrar shall not be required to register the transfer or exchange of any
Security (i) during a period beginning at the opening of business 15 days before
the mailing of a notice of redemption of Securities and ending at the close of
business on the day of such mailing and (ii) selected for redemption in whole or
in part pursuant to Article Three hereof, except the unredeemed portion of any
Security being redeemed in part.
Prior to the registration of any transfer by a Holder as provided herein,
the Issuers, the Trustee and any Agent shall treat the person in whose name the
Security is registered as the owner thereof for all purposes whether or not the
Security shall be overdue, and neither the Issuers, the Trustee nor any Agent
shall be affected by notice to the contrary. Any Holder of a beneficial interest
in a Global Security shall, by acceptance of such beneficial interest in a
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Depository (or its agent), and that ownership of a beneficial interest in a
Global Security shall be required to be reflected in a book entry.
SECTION 2.7 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Issuers shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements for replacement of Securities are met. If
required by the Issuers or the Trustee, such Holder must provide an indemnity
bond or other indemnity, sufficient in the judgment of both the Issuers and the
Trustee, to protect the Issuers, the Trustee and any Agent from any loss which
any of them may suffer if a Security is replaced The Issuers may charge such
Holder for its reasonable out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every replacement Security is
an additional obligation of the Issuers.
SECTION 2.8 Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because an
Issuer or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.07.
If on a Redemption Date, Purchase Date or the Final Maturity Date the
Paying Agent holds money sufficient to pay all of the principal and interest due
on the Securities payable on that date, and is not prohibited from paying such
money to the Holders pursuant to the terms of this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by an Issuer, Holdings, a Guarantor or any of their respective Affiliates shall
be disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that a Trust Officer of the Trustee actually knows are so owned shall
be disregarded.
The Issuers shall notify the Trustee, in writing, when an Issuer, Holdings,
a Guarantor or any of their respective Affiliates repurchases or otherwise
acquires Securities and of the aggregate principal amount of such Securities so
repurchased or otherwise acquired.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Issuers may prepare
and the Trustee shall authenticate temporary Securities upon receipt of a
written order of the Issuers in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Issuers consider appropriate for
temporary Securities. Without unreasonable delay, the Issuers shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Issuers
pursuant to Section 2.02 definitive Securities in exchange for temporary
Securities.
SECTION 2.11 Cancellation.
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel, and at the written direction of the Issuers,
dispose of and deliver evidence of such disposal of all Securities surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Issuers may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation. If an Issuer, Holdings or any
Guarantor shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
SECTION 2.12 Defaulted Interest.
The Issuers shall pay interest on overdue principal from time to time on
demand at the applicable rate of interest then borne by the Securities. The
Issuers shall, to the extent lawful, pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the rate of
interest then borne by the Securities. If the Issuers default in a payment of
interest on the Securities, they shall pay the defaulted interest, plus
(to the extent lawful) any interest payable on the defaulted interest to
the Persons
who are Holders on a subsequent special record date, which date shall be the
fifteenth day preceding the date fixed by the Issuers for the payment of
defaulted interest or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before the subsequent special record date, the
Issuers shall mail to each Holder, with a copy to the Trustee, a notice that
states the subsequent special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted interest, if any, to
be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(i) shall be paid to
Holders as of the Interest Record Date for the Interest Payment Date for which
interest has not been paid.
SECTION 2.13 CUSIP Number.
The Issuers in issuing the Securities will use a "CUSIP" number and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided , however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. The Issuers shall
promptly notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14 Deposit of Moneys.
Prior to 10:00 a.m. New York City time on each Interest Payment Date,
Redemption Date, Purchase Date and the Final Maturity Date, the Issuers shall
deposit with the Paying Agent in immediately available funds money sufficient to
make cash payments, if any, due on such Interest Payment Date, Redemption Date,
Purchase Date or Final Maturity Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, Redemption Date, Purchase Date or Final Maturity Date, as the case
may be.
SECTION 2.15 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
Members of, or participants in, the Depository ("Participants") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated
by the Issuers, the Trustee and any agent of the Issuers or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Securities may be transferred or
exchanged for Physical Securities in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16; provided, however, that
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the Depository
notifies the Issuers that it is unwilling or unable to continue as Depository
for any Global Security and a successor Depository is not appointed by the
Issuers within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a request from the Depository
to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuers shall execute, and the Trustee shall upon written instructions
from the Issuers authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in the Global
Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(d) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (b) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
SECTION 2.16 Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical Securities
are presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal
amount of Physical Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the Physical
Securities presented or surrendered for Registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing; and
(II) in the case of Physical Securities the offer and sale of which have
not been registered under the Securities Act, such Physical Securities shall be
accompanied, in the sole discretion of the Issuers, by the following additional
information and documents, as applicable:
(A) if such Physical Security is being delivered to the Registrar or
co-Registrar by a Holder for Registration in the name of such Holder,
without transfer, a certification from such Holder to that effect
(substantially in the form of Exhibit D hereto); or
(B) if such Physical Security is being transferred to a QIB in
accordance with Rule 144A, a certification to that effect (substantially in
the form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an Institutional
Accredited Investor, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and a transferee letter of
representation substantially in the form of Exhibit E hereto and, at the
option of the Issuers, an Opinion of Counsel reasonably satisfactory to the
Issuers to the effect that such transfer is in compliance with the
Securities Act; or
(D) if such Physical Security is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit D hereto) and, at the option
of the Issuers, an Opinion of Counsel reasonably satisfactory to the
Issuers to the effect that such transfer is in compliance with the
Securities Act; or
(E) if such Physical Security is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that
effect (substantially in the form of Exhibit D hereto) and, at the option
of the Issuers, an Opinion of Counsel reasonably acceptable to the
Issuers to the effect that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical Security for a Beneficial
Interest in a Global Security. A Physical Security the offer and sale of which
has not been registered under the Securities Act may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co- Registrar of
a Physical Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or co-Registrar, together with:
(A) certification, substantially in the form of Exhibit D hereto, that such
Physical Security is being transferred (I) to a QIB or (II) to an Accredited
Investor and, with respect to (II), at the option of the Issuers, an Opinion of
Counsel reasonably acceptable to the Issuers to the effect that such transfer is
in compliance with the Securities Act; and
(B) written instructions directing the Registrar or co-Registrar to make,
or to direct the Depository to make, an endorsement on the applicable Global
Security to reflect an increase in the aggregate amount of the Securities
represented by the Global Security, then the Registrar or co-Registrar shall
cancel such Physical Security and cause, or direct the Depository to cause, in
accordance with the standing instructions and procedures existing between the
Depository and the Registrar or co-Registrar, the principal amount of Securities
represented by the applicable Global Security to be increased accordingly. If no
Global Security is then outstanding, the Issuers shall, unless either of the
events in the proviso to Section 2.15(b) have occurred and are continuing, issue
and the Trustee shall, upon written instructions from the Issuers in accordance
with Section 2.02, authenticate such a Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and exchange
of Global Securities or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor. Upon receipt by the Registrar or Co-Registrar of written instructions,
or such other instruction as is customary for the Depository, from the
Depository or its nominee, requesting the Registration of transfer of an
interest in a Global Security to another type of Global Security, together with
the applicable Global Securities (or, if the applicable type of Global Security
required to represent the interest as requested to be transferred is not then
outstanding, only the Global Security representing the interest being
transferred), the Registrar or Co-Registrar shall cancel such Global Securities
(or Global Security) and the Issuers shall issue and the Trustee shall, upon
written instructions from the Issuers in accordance with
Section 2.02, authenticate new Global Securities of the types so cancelled (or
the type so cancelled and applicable type required to represent the interest as
requested to be transferred) reflecting the applicable increase and decrease of
the principal amount of Securities represented by such types of Global
Securities, giving effect to such transfer. If the applicable type of Global
Security required to represent the interest as requested to be transferred is
not outstanding at the time of such request, the Issuers shall issue and the
Trustee shall, upon written instructions from the Issuers in accordance with
Section 2.02, authenticate a new Global Security of such type in principal
amount equal to the principal amount of the interest requested to be
transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a Physical
Security.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Physical Security;
provided, however, that prior to the Registration, a transferee that is a
QIB or Institutional Accredited Investor may not exchange a beneficial
interest in Global Security for a Physical Security. Upon receipt by the
Registrar or co-Registrar of written instructions, or such other form of
instructions as is customary for the Depository, from the Depository or its
nominee on behalf of any Person (subject to the previous sentence) having a
beneficial interest in a Global Security and upon receipt by the Trustee of
a written order or such other form of instructions as is customary for the
Depository or the Person designated by the Depository as having such a
beneficial interest containing registration instructions and, in the case
of any such transfer or exchange of a beneficial interest in Securities the
offer and sale of which have not been registered under the Securities Act,
the following additional information and documents:
(A) if such beneficial interest is being transferred in reliance on Rule
144 under the Securities Act, delivery of a certification to
that effect (substantially in the form of Exhibit D hereto) and, at
the option of the Issuers, an Opinion of Counsel reasonably
satisfactory to the Issuers to the effect that such transfer is in
compliance with the Securities Act; or
(B) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (substantially in the form of
Exhibit D hereto) and, at the option of the Issuers, an Opinion of
Counsel reasonably satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the aggregate principal amount of the applicable Global Security
to be reduced and, following such reduction,
the Issuers will execute and, upon receipt of an authentication order in the
form of an Officers' Certificate in accordance with Section 2.02, the Trustee
will authenticate and deliver to the transferee a Physical Security in the
appropriate principal amount.
(ii) Securities issued in exchange for a beneficial interest in a Global
Security pursuant to this Section 2.16(d) shall be registered in such names and
in such authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Registrar or co-Registrar in writing. The Registrar or co-Registrar shall
deliver such Physical Securities to the Persons in whose names such Physical
Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar or co-Registrar shall deliver only
Securities that bear the Private Placement Legend unless, and the Trustee is
hereby authorized to deliver Securities without the Private Placement Legend if,
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Issuers and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act; (ii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act (including pursuant to a Registration); or (iii) the date of such
transfer, exchange or replacement is two years after the later of (x) the Issue
Date and (y) the last date that an Issuer or any affiliate (as defined in Rule
144 under the Securities Act) of an Issuer was the owner of such Securities (or
any predecessor thereto).
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Participants
or beneficial owners of interest in any Global Security) other than to require
delivery
of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15 or this Section 2.16. The
Issuers 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 3.1 Notices to Trustee.
If the Issuers want to redeem Securities pursuant to paragraph 5 or
6 of the Securities at the applicable redemption price set forth thereon, they
shall notify the Trustee in writing of the Redemption Date and the principal
amount of Securities to be redeemed. The Issuers shall give such notice to the
Trustee at least 60 days before the Redemption Date (unless a shorter notice
shall be agreed to by the Trustee in writing), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
SECTION 3.2 Selection of Securities To Be Redeemed.
If less than all of the Fixed Rate Securities or Floating Rate Securities
are to be redeemed, the Trustee shall select the Securities to be redeemed in
compliance with the requirements of the principal national securities exchange,
if any, on which such Securities are listed or, if such Securities or Floating
Rates Securities are not so listed, on a pro rata basis, by lot or in such other
manner as the Trustee shall deem fair and appropriate.
The Trustee may select for redemption portions of the principal amount of
Securities that have denominations equal to or larger than $1,000 principal
amount. Securities and portions of them the Trustee so selects shall be in
amounts of $1,000 principal amount or integral multiples thereof. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Issuers shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be
redeemed at such Holder's registered address.
Each notice of redemption shall identify the Securities to be redeemed
(including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the Securities are to
be surrendered for redemption;
(4) that Securities called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(5) that, unless the Issuers default in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender to the Paying Agent; and
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued.
At the Issuers' request, the Trustee shall give the notice of redemption on
behalf of the Issuers, in the Issuers' name and at the Issuers' expense.
SECTION 3.4 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
SECTION 3.5 Deposit of Redemption Price.
At least one Business Day before the Redemption Date, the Issuers shall
deposit
with the Paying Agent (or if an Issuer is Paying Agent, shall, on or before the
Redemption Date, 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 thereof called for
redemption on that date which have been delivered by the Issuers to the Trustee
for cancellation.
If any Security surrendered for redemption in the manner provided in the
Securities shall not be so paid on the Redemption Date due to the failure of the
Issuers to deposit with the Paying Agent money sufficient to pay the redemption
price thereof, the principal and accrued and unpaid interest, if any, thereon
shall, until paid or duly provided for, bear interest as provided in Sections
2.12 and 4.01 with respect to any payment default.
SECTION 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay the principal of and interest on the Securities in the
manner provided in the Securities and the Registration Rights Agreement. An
installment of principal or interest shall be considered paid on the date due if
the Trustee or Paying Agent (other than an Issuer, Holdings, a Guarantor or any
of their respective Affiliates) holds on that date money designated for and
sufficient to pay the installment in full and is not prohibited from paying such
money to the Holders of the Securities pursuant to the terms of this Indenture.
The Issuers shall pay cash interest on overdue principal at the same rate
per annum borne by the applicable Securities. The Issuers shall pay cash
interest on overdue installments of interest at the same rate per annum borne by
the applicable Securities, to the extent lawful, as provided in Section 2.12.
SECTION 4.2 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The City of New
York, the office or agency required under Section 2.03. The Issuers shall give
prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13. The Issuers hereby initially
designate the Trustee at its address set forth in Section 13.02 as their office
or agency in The Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.3 Limitations on Transactions with Affiliates.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving
aggregate consideration in excess of $5.0 million, unless (a) such Affiliate
Transaction is on terms that are not materially less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, the Company delivers to the Trustee a resolution adopted by the
majority of the Board of Directors of the Company, approving such Affiliate
Transaction and set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (a) above.
The foregoing provisions will not apply to the following: (i) transactions
between or among the Company and/or any of its Restricted Subsidiaries; (ii)
Restricted Payments permitted by Section 4.06 of this Indenture; (iii) the
payment of annual management, consulting, monitoring and advisory fees and
related expenses to Blackstone, Graham Packaging Corporation and their
respective Affiliates; (iv) the payment of reasonable and customary fees paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary; (v) payments by the
Company or any of its Restricted Subsidiaries to Blackstone and its Affiliates
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which payments are
approved by the majority of the Board of Directors of the Company, in good
faith; (vi) transactions in which the Company or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
Independent Financial Advisor stating that such transaction is fair to the
Company or such Restricted Subsidiary from a financial point of view or meets
the requirements of clause (a) of the preceding paragraph; (vii) payments or
loans to employees or consultants which are approved by a majority of the Board
of Directors of the Company in good faith; (viii) any agreement as in effect as
of the Issue Date or any amendment thereto (so long as any such
amendment is not disadvantageous to the Holders of the Securities in any
material respect) or any transaction contemplated thereby; (ix) the existence
of, or the performance by the Company or any Restricted Subsidiary of its
obligations under the terms of, the Recapitalization Agreement, or any agreement
contemplated thereunder (including any registration rights agreement or purchase
agreement related thereto) to which it is a party as of the Issue Date and any
similar agreements which it may enter into thereafter; provided, however, that
the existence of or the performance by the Company or any Restricted Subsidiary
of obligations under any future amendment to any such existing agreement or
under any similar agreement entered into after the Issue Date shall only be
permitted by this clause (ix) to the extent that the terms of any such amendment
or new agreement are not otherwise disadvantageous to the Holders of the
Securities in any material respect; (x) the payment of all fees, expenses,
bonuses and awards related to the transactions contemplated by the
Recapitalization Agreement, including fees to Blackstone; and (xi) transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture which are fair to the Company and
its Restricted Subsidiaries, in the reasonable determination of the majority of
the Board of Directors of the Company, or are on terms at least as favorable as
might reasonably have been obtained at such time from an unaffiliated party.
SECTION 4.4 Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
(i) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur" and
collectively, an "incurrence") any Indebtedness (including Acquired
Indebtedness), (ii) the Company and any Guarantor will not issue any shares of
Disqualified Stock and (iii) the Company will not permit any of its Restricted
Subsidiaries that are not Guarantors (other than CapCo I) to issue any shares of
preferred stock; provided, however, that the Company and any Guarantor may incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock if the Fixed Charge Coverage Ratio for the Company's and the Restricted
Subsidiaries' most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least 1.75 to 1.00 (determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued, as
the case may be, and the application of proceeds therefrom had occurred at the
beginning of such four-quarter period).
The foregoing limitations will not apply to: (a) the incurrence by the
Company or its Restricted Subsidiaries of Indebtedness under the New Credit
Facility and the issuance and creation of letters of credit and banker's
acceptances thereunder (with letters of credit and
banker's acceptances being deemed to have a principal amount equal to the face
amount thereof) up to an aggregate principal amount of $650 million outstanding
at any one time; (b) the incurrence by the Issuers of Indebtedness represented
by the Securities in an aggregate principal amount not to exceed $225,000,000;
(c) Indebtedness existing on the Issue Date (other than Indebtedness described
in clauses (a) and (b)); (d) Indebtedness (including Capitalized Lease
Obligations) incurred by the Company or any of its Restricted Subsidiaries to
finance the purchase, lease or improvement of property (real or personal) or
equipment (whether through the direct purchase of assets or the Capital Stock of
any Person owning such assets) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then outstanding
and incurred pursuant to this clause (d) and including all Refinancing
Indebtedness incurred to refund, refinance or replace any other Indebtedness
incurred pursuant to this clause (d), does not exceed 15% of Total Assets at the
time of the respective incurrence; (e) Indebtedness incurred by the Company or
any of its Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including without limitation, letters of credit in respect of workers'
compensation claims or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation claims; (f)
Indebtedness arising from agreements of the Company or a Restricted Subsidiary
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such acquisition;
(g) Indebtedness of the Company to a Restricted Subsidiary; provided that any
such Indebtedness shall be subordinated in right of payment to the Securities;
provided, further, that any subsequent issuance or transfer of any Capital Stock
or any other event which results in any such Restricted Subsidiary ceasing to be
a Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Company or another Restricted Subsidiary) shall be
deemed, in each case, to be an incurrence of such Indebtedness; (h) shares of
preferred stock of a Restricted Subsidiary issued to the Company or another
Restricted Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any other subsequent transfer of any
such shares of preferred stock (except to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to be an issuance of such shares of
preferred stock; (i) Indebtedness of a Restricted Subsidiary to the Company or
another Restricted Subsidiary; provided that if a Guarantor incurs such
Indebtedness from a Restricted Subsidiary that is not a Guarantor, such
Indebtedness shall be subordinated in right of payment to the Guarantee of such
Guarantor; and provided, further, that any subsequent transfer of any such
Indebtedness (except to the Company or another Restricted Subsidiary) shall be
deemed, in each case to be an incurrence of such Indebtedness; (j) Hedging
Obligations that are incurred in the ordinary course of business (1) for the
purpose of fixing or hedging interest rate risk with respect to any Indebtedness
that is permitted by the terms of this Indenture to be outstanding; (2) for the
purpose of fixing or hedging currency exchange rate risk with respect to any
currency exchanges; or (3) for the purpose of fixing or hedging commodity price
risk with respect to any commodity purchases; (k) obligations in respect of
performance and surety bonds and completion guarantees provided by the Company
or any Restricted Subsidiary in the ordinary course of business; (l)
Indebtedness of any Guarantor in respect of such Guarantor's Guarantee; (m)
Indebtedness or Disqualified Stock of the Company and any of its Restricted
Subsidiaries not otherwise permitted hereunder in an aggregate principal amount
or liquidation preference which, when aggregated with the principal amount and
liquidation preference of all other Indebtedness and Disqualified Stock then
outstanding and incurred pursuant to this clause (m), does not exceed $50.0
million at any one time outstanding; (n) (i) any guarantee by the Company or by
any Restricted Subsidiary that is a Guarantor of Indebtedness or other
obligations of the Company or any of the Company's Restricted Subsidiaries so
long as the incurrence of such Indebtedness incurred by such Restricted
Subsidiary or the Company, as the case may be, is permitted under the terms of
the Senior Subordinated Indenture and (ii) any Excluded Guarantee of a
Restricted Subsidiary; (o) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness which serves to refund, refinance or
restructure any Indebtedness incurred as permitted under the first paragraph of
this covenant, this clause (o) and clauses (b) and (c) above and (q) below, or
any Indebtedness issued to so refund, refinance or restructure such Indebtedness
including additional Indebtedness incurred to pay premiums and fees in
connection therewith (the "Refinancing Indebtedness") prior to its respective
maturity; provided, however, that such Refinancing Indebtedness (i) has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
incurred which is not less than the remaining Weighted Average Life to Maturity
of the Indebtedness being refunded or refinanced, (ii) to the extent such
Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to
the Securities, such Refinancing Indebtedness is subordinated or pari passu to
the Securities at least to the same extent as the Indebtedness being refinanced
or refunded and (iii) shall not include (x) Indebtedness of a Restricted
Subsidiary that is not a Guarantor that refinances Indebtedness of the Company
or (y) Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary; and provided, further, that
subclauses (i) and (ii) of this clause (o) will not apply to any refunding or
refinancing of any Senior Indebtedness; (p) other Indebtedness in an amount not
greater than twice the amount of Permanent Qualified Equity Contributions after
the Issue Date at any one time outstanding; and (q) Indebtedness or Disqualified
Stock of Persons that are acquired by the Company or any of its Restricted
Subsidiaries or merged into a Restricted Subsidiary in accordance with the terms
of this Indenture; provided that such Indebtedness or Disqualified Stock is not
acquired in contemplation of such acquisition or merger; and provided, further,
that after giving effect to such acquisition, either (i) the Company would be
permitted to incur at least $1.0 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first sentence of this
covenant or (ii) the Fixed Charge Coverage Ratio is greater than immediately
prior to such acquisition.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of permitted Indebtedness described in clauses (a) through (q) above
or is entitled to be incurred pursuant to the first paragraph of this covenant,
the Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this covenant and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional
Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes
of this covenant.
SECTION 4.5 Limitation on Asset Sales.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, cause, make or suffer to exist an Asset Sale, unless (x) the
Company or its Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Company) of the assets sold or otherwise
disposed of and (y) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary, as the case may be, is in the form of
cash or Cash Equivalents; provided that the amount of (a) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance sheet
or in the notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Securities) that are
assumed by the transferee of any such assets without recourse to the Company or
any of the Restricted Subsidiaries, (b) any notes or other obligations received
by the Company or such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received) within 180 days following the closing of such Asset Sale,
(c) any Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate fair market
value, taken together with all other Designated Noncash Consideration received
pursuant to this clause (c) that is at that time outstanding, not to exceed 15%
of Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value), and (d) any assets received in exchange for assets
related to a Similar Business of comparable market value, in the good faith
determination of, the Board of Directors of the Company, shall be deemed to be
cash for purposes of this provision.
Within 365 days after the Company's or any Restricted Subsidiary's receipt
of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary
may apply the Net Proceeds from such Asset Sale, at its option, (i) to
permanently reduce Obligations under the New Credit Facility (and to
correspondingly reduce commitments with respect thereto) or other Senior
Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so
reduce
Obligations under Pari Passu Indebtedness, it will equally and ratably
reduce Obligations under the Securities if the Securities are then redeemable
or, if the Securities may not be then redeemed, the Issuers shall make an Offer
to Purchase to all Holders to purchase at 100% of the principal amount thereof
the amount of Securities that would otherwise be redeemed) or Indebtedness of a
Restricted Subsidiary, (ii) to an investment in any one or more businesses,
capital expenditures or acquisitions of other assets in each case, used or
useful in a Similar Business and/or (iii) to make an investment in properties or
assets that replace the properties and assets that are the subject of such Asset
Sale. Pending the final application of any such Net Proceeds, the Company or
such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Net Proceeds in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sale
that are not invested as provided and within the time period set forth in the
first sentence of this paragraph (it being understood that any portion of such
Net Proceeds used to make an offer to purchase Securities, as described in
clause (i) above, shall be deemed to have been invested whether or not such
offer is accepted) will be deemed to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $15.0 million, the
Issuers shall make an Offer to Purchase to all Holders of Securities to purchase
the maximum principal amount of Securities that is an integral multiple of
$1,000 that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth below. The Issuers will commence an
Offer to Purchase with respect to Excess Proceeds within ten Business Days after
the date that Excess Proceed exceeds $15.0 million. To the extent that the
aggregate amount of Securities tendered pursuant to such an Offer to Purchase is
less than the Excess Proceeds, the Company may use any remaining Excess Proceeds
for general corporate or partnership purposes. Upon completion of any such Offer
to Purchase, the amount of Excess Proceeds shall be reset at zero.
The Issuers will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the repurchase
of the Securities pursuant to such an Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Indenture, the Issuers will comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations described
in this Indenture by virtue thereof.
On or prior to the Purchase Date specified in the Offer to Purchase, the
Issuers shall (i) accept for payment all Securities validly tendered pursuant to
the Offer, (ii) deposit with the Paying Agent or, if an Issuer is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 2.04, money
sufficient to pay the Purchase Price of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee for cancellation all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Issuers. The Paying Agent (or an Issuer, if so acting) shall promptly mail
or deliver to Holders of Securities so accepted, payment in an amount equal to
the Purchase Price for such Securities, and the Trustee shall promptly
authenticate and mail or deliver to each Holder of Securities a new Security or
Securities equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for payment
shall be promptly mailed or delivered by the Issuers to the Holder thereof. The
Issuers shall publicly announce the results of the Offer on or as soon as
practicable after the Purchase Date.
SECTION 4.6 Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (other than (A) dividends or distributions by the
Company payable in Equity Interests (other than Disqualified Stock) of the
Company or (B) dividends or distributions by a Restricted Subsidiary so long as,
in the case of any dividend or distribution payable on or in respect of any
class or series of securities issued by a Restricted Subsidiary other than a
Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of securities);
(ii) purchase or otherwise acquire or retire for value any Equity Interests of
the Company; (iii) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value, in each case, prior to any scheduled
repayment or maturity, any Subordinated Indebtedness (other than (A) the
payment, redemption, repurchase, defeasance, acquisition or retirement of
Subordinated Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in any case due within one
year of the date of such payment, redemption, repurchase, defeasance,
acquisition or retirement, and (B) Indebtedness permitted under clauses (g) and
(i) of Section 4.04 of this Indenture); or (iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless, at the time of
such Restricted Payment: (a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; (b) immediately after
giving effect to such transaction on a pro forma basis, the Company could incur
$1.00 of additional Indebtedness under the provisions of the first paragraph of
Section 4.04 of this Indenture; and (c) such Restricted Payment, together with
the aggregate amount of all other Restricted Payments made by the Company and
its Restricted Subsidiaries after the Issue Date (including Restricted Payments
permitted by clauses (i), (ii) (with respect to the repurchase, retirement or
other acquisition of Retired Capital Stock pursuant to clause (a) thereof and
the payment of dividends on Retired
Capital Stock pursuant to clause (b) thereof), (v), (vi), (ix) and (x) of the
next succeeding paragraph, but excluding all other Restricted Payments permitted
by the next succeeding paragraph), is less than the sum of (i) 50% of the
cumulative Consolidated Net Income of the Company for the period (taken as one
accounting period) from the first day after the Issue Date to the date of such
Restricted Payment (or, in the case such Consolidated Net Income for such period
is a deficit, minus 100% of such deficit), plus (ii) 100% of the aggregate net
proceeds, including cash and the fair market value of property other than cash
(as determined in good faith by the Company), received by the Company since the
Issue Date from the issue or sale of Equity Interests of the Company (including
Refunding Capital Stock (as defined below) but excluding Disqualified Stock),
including such Equity Interests issued upon conversion of Indebtedness or upon
exercise of warrants or options, plus (iii) 100% of the aggregate amount of
contributions to the capital of the Company since the Issue Date (other than
Excluded Contributions), plus (iv) 100% of the aggregate amount received in cash
and the fair market value of property other than cash (as determined in good
faith by the Company) received from (A) the sale or other disposition (other
than to the Company or a Restricted Subsidiary) of Restricted Investments made
by the Company and its Restricted Subsidiaries or (B) the sale (other than to
the Company or a Restricted Subsidiary) of the Capital Stock of an Unrestricted
Subsidiary, plus (v) in case any Unrestricted Subsidiary has been redesignated a
Restricted Subsidiary or has been merged, consolidated or amalgamated with or
into, transfers or conveys assets to, or is liquidated into, the Company or a
Restricted Subsidiary, the fair market value (as determined in good faith by the
Company) of such Investment in such Unrestricted Subsidiary at the time of such
redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), after deducting any Indebtedness associated with the
Unrestricted Subsidiary so designated or combined or with the assets so
transferred or conveyed.
The foregoing provisions will not prohibit: (i) the payment of any dividend
or distribution within 60 days after the date of declaration thereof, if at the
date of declaration such payment would have complied with the provisions of this
Indenture; (ii) (a) the repurchase, retirement or other acquisition of any
Equity Interests (the "Retired Capital Stock") or Subordinated Indebtedness of
the Company in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of
the Company (other than any Disqualified Stock) or contributions to the common
equity capital of the Company (the "Refunding Capital Stock"), and (b) the
declaration and payment of dividends on the Retired Capital Stock out of the
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of Refunding Capital Stock; (iii) the redemption, repurchase or
other acquisition or retirement of Subordinated Indebtedness of the Company made
by exchange for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Company so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount of and accrued and unpaid
interest on the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired for value (plus the amount of any premium required to be
paid
under the terms of the instrument governing the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired), (B) such Indebtedness is
subordinated to the Securities at least to the same extent as such Subordinated
Indebtedness so purchased, exchanged, redeemed, repurchased, acquired or retired
for value, (C) such Indebtedness has a final scheduled maturity date equal to or
later than the final scheduled maturity date of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired and (D) such Indebtedness
has a Weighted Average Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired; (iv) the repurchase, retirement or
other acquisition for value (or a dividend or distribution to fund any such
repurchase, retirement or other acquisition) of Equity Interests of the Company,
Holdings or Investor LP held by any future, present or former employee, director
or consultant of the Company or any Subsidiary pursuant to any management equity
plan or stock option plan or any other management or employee benefit plan or
agreement; provided, however, that the aggregate amounts paid under this clause
(iv) does not exceed in any calendar year $5.0 million (with unused amounts in
any calendar year being carried over to succeeding calendar years subject to a
maximum (without giving effect to the following proviso) of $10.0 million in any
calendar year); provided, further, that such amount in any calendar year may be
increased by an amount not to exceed (i) the cash proceeds from the sale of
Equity Interests of the Company (or of Holdings or Investor LP which are
contributed to the Company) to members of management, directors or consultants
of the Company and its Subsidiaries that occurs after the Issue Date (provided
that such proceeds have not been included with respect to determining whether a
previous Restricted Payment was permitted pursuant to the first paragraph of
this covenant) plus (ii) the cash proceeds of key man life insurance policies
received by the Company and its Restricted Subsidiaries after the Issue Date;
(v) the declaration and payment of dividends or distributions to holders of any
class or series of Disqualified Stock of the Company or any of its Restricted
Subsidiaries issued or incurred in accordance with Section 4.04 of this
Indenture; (vi) the declaration and payment of dividends or distributions to
holders of any class or series of Designated Preferred Stock; provided, however,
that for the most recently ended four full fiscal quarters for which internal
financial statements are available preceding the date of declaration of any such
dividend or distribution, after giving effect to such dividend or distribution
as a Fixed Charge on a pro forma basis, the Company and its Restricted
Subsidiaries would have had a Fixed Charge Coverage Ratio of at least 1.75 to
1.00; (vii) Investments in Unrestricted Subsidiaries having an aggregate fair
market value, taken together with all other Investments made pursuant to this
clause (vii) that are at that time outstanding, not to exceed $15.0 million at
the time of such Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value); (viii) repurchases of (or a dividend or distribution to fund the
repurchases of) Equity Interests of the Company, Holdings or Investor LP deemed
to occur upon exercise of stock options if such Equity Interests represent a
portion of the exercise price of such options; (ix) the payment of dividends on
the Company's Common Stock (or the payment to Holdings to fund the payment by
Holdings of
dividends on Holdings' Common Stock) following the first public offering
of Common Stock of the Company or Holdings, as the case may be, after
the Issue Date, of up to 6% per annum of the net proceeds received by the
Company or contributed to the Company by Holdings, as the case may be, in such
public offering; (x) the repurchase, retirement or other acquisition for value
after the first anniversary of the Issue Date (or dividend or distribution to
fund the repurchase, retirement or other acquisition of) of Equity Interests of
Holdings, the Company or Investor LP in existence on the Issue Date and which
are not held by Blackstone or any of its Affiliates or the Management Group on
the Issue Date (including any Equity Interests issued in respect of such Equity
Interests as a result of a stock split, recapitalization, merger, combination,
consolidation or otherwise, but excluding any management equity plan or stock
option plan or similar agreement), provided that (A) the aggregate amounts paid
under this clause (x) shall not exceed (I) $15.0 million on or prior to the
second anniversary of the Issue Date or (II) $30.0 million at any time after the
second anniversary of the Issue Date and (B) after giving effect thereto, the
Company would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first sentence
of Section 4.04 of this Indenture; (xi) Investments that are made with Excluded
Contributions; (xii) other Restricted Payments in an aggregate amount not to
exceed $15.0 million; (xiii) the payment of any dividend or distribution on
Equity Interests of the Company to the extent necessary to permit direct or
indirect beneficial owners of such Equity Interests to receive tax distributions
in an amount equal to the taxable income of the Company allocated to a partner
multiplied by the highest combined federal and state income tax rate (including,
to the extent applicable, alternative minimum tax) solely as a result of the
Company (and any intermediate entity through which such holder owns such Equity
Interests) being a partnership or similar pass-through entity for federal income
tax purposes ("Permitted Tax Distributions"); (xiv) the payment of dividends or
distributions to Holdings to fund cash interest payments on the Holdings Senior
Discount Notes commencing July 15, 2003 in accordance with the terms of the
Holdings Senior Discount Notes; (xv) Restricted Payments made on the Issue Date
contemplated by the Recapitalization Agreement; and (xvi) any dividend or
distribution to Holdings in respect of overhead expenses, legal, accounting,
Commission reporting and other professional fees and expenses of Holdings that
are directly attributable to the operations of the Company and its Restricted
Subsidiaries; provided, however, that at the time of, and after giving effect
to, any Restricted Payment permitted under clauses (vii), (ix), (x), (xii) and
(xiv) (other than with respect to Defaults and Events of Default set forth in
clause (iii) or (vi) under Section 6.01), no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof; and
provided, further, that for purposes of determining the aggregate amount
expended for Restricted Payments in accordance with clause (c) of the
immediately preceding paragraph, only the amounts expended under clauses (i),
(ii) (with respect to the repurchase, retirement or other acquisition of Retired
Capital Stock pursuant to clause (a) thereof and the payment of dividends on
Retired Capital Stock pursuant to clause (b) thereof), (v), (vi), (ix) and (x)
shall be included.
As of the Issue Date, all of the Company's Subsidiaries will be Restricted
Subsidiaries. The Company will not permit any Unrestricted Subsidiary to become
a Restricted Subsidiary except pursuant to the second to last sentence of the
definition of "Unrestricted Subsidiary." For purposes of designating any
Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments
by the Company and its Restricted Subsidiaries (except to the extent repaid) in
the Subsidiary so designated will be deemed to be Restricted Payments in an
amount determined as set forth in the last sentence of the definition of
"Investments." Such designation will only be permitted if a Restricted Payment
in such amount would be permitted at such time (whether pursuant to the first
paragraph of this covenant or under clause (vii), (xi) or (xii)) and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
SECTION 4.7 Existence.
Subject to Article Five, the Company shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a corporation, partnership or other entity. Nothing contained herein or in any
Securities or Holdings Guarantee shall require Holdings to preserve its
existence, and Holdings may be dissolved at any time (whether in connection with
a Holdings IPO Reorganization or otherwise).
SECTION 4.8 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability, or Lien upon the property, of the Company or any Restricted
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has been made.
SECTION 4.9 Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the Company
shall promptly deliver an Officers' Certificate to the Trustee specifying the
Default or Event of Default.
SECTION 4.10 Maintenance of Properties and Insurance.
(a) Subject to Article Five, the Company shall cause all material
properties owned by or leased to it or any Restricted Subsidiary and used or
useful in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in normal condition, repair and working
order and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 4.10 shall prevent
the Company or any Restricted Subsidiary from discontinuing the use, operation
or maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or the Restricted Subsidiary concerned, or of an Officer (or other agent
employed by the Company or of any Restricted Subsidiary) of the Company or such
Restricted Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary as, in the judgment of the Company, may be necessary.
(b) The Company shall maintain, and shall cause the Restricted Subsidiaries
to maintain, insurance with responsible carriers against such risks and in such
amounts, and with such deductibles, retentions, self-insured amounts and
co-insurance provisions as, in the judgment of the Company, may be necessary.
SECTION 4.11 Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after the end of
each of the first three fiscal quarters of the Company and within 90 days after
the close of each fiscal year a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Issuers has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default or Event of Default by the Issuers that occurred during such fiscal
quarter or fiscal year. If they do know of such a Default or Event of Default,
the certificate shall describe all such Defaults or Events of Default, their
status and the action the Company is taking or proposes to take with respect
thereto. The first certificate to be delivered by the Company pursuant to this
Section 4.11 shall be for the period commencing February 2, 1998 and ending
March 31, 1998.
SECTION 4.12 Reports to Holders.
The Issuers will deliver to the Trustee within 15 days after the filing of
the same with the Commission, copies of the quarterly and annual reports and of
the information, documents and other reports, if any, which the Issuers are
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. Notwithstanding that the Issuers may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Commission, the Issuers will file with the Commission (and provide the Trustee
and Holders with copies thereof, without cost to each Holder, within 15 days
after it files them with the Commission) (a) within 90 days after the end of
each fiscal year, annual reports on Form 10-K (or any successor or comparable
form) containing the information required to be contained therein (or required
in such successor or comparable form); (b) within 45 days after the end of each
of the first three fiscal quarters of each fiscal year, reports on Form 10-Q (or
any successor or comparable form); (c) promptly from time to time after the
occurrence of an event required to be therein reported, such other reports on
Form 8-K (or any successor or comparable form); and (d) any other information,
documents and other reports which the Issuers would be required to file with the
Commission if they were subject to Section 13 or 15(d) of the Exchange Act;
provided, however, that the Issuers shall not be so obligated to file such
reports with the Commission if the Commission does not permit such filing, in
which event the Issuers will make available such information to prospective
purchasers of Securities, in addition to providing such information to the
Trustee and the Holders, in each case within 15 days after the time the Issuers
would be required to file such information with the Commission, if they were
subject to Section 13 or 15(d) of the Exchange Act. The above reporting
requirements with respect to the Issuers may be satisfied through the filing and
provision of such reports, information and documents by the Holdings Issuers in
lieu of the Issuers. Notwithstanding the foregoing, such requirements shall be
deemed satisfied (x) prior to April 30, 1998, if the Holdings Issuers deliver to
the Trustee and the Holders of the Securities on or prior to such date copies of
the audited financial statements of the Holdings Issuers and (y) prior to May
31, 1998, by filing with the Commission and delivering to the Trustee and the
Holders of the Securities on or prior to such date a registration statement
under the Securities Act that contains the information that would be required in
a Form 10-K for the Holdings Issuers for the year ended December 31, 1997 and a
Form 10-Q for the Holdings Issuers for the quarter ended March 31, 1998. The
Issuers will also comply with the other provisions of TIA ss. 314(a).
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.
Each of the Issuers, Holdings and the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other
law, which would prohibit or forgive the Issuers, Holdings or such Guarantor
from paying all or any portion of the principal of and/or interest, if any, on
the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Issuers, Holdings
and each Guarantor hereby expressly waive all benefit or advantage of any such
law, and covenants that it shall not hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.14 Change of Control.
(a) Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall notify the
Holders of the Securities of such occurrence in the manner prescribed by this
Indenture and shall, within 30 days after the Change of Control Date, make an
Offer to Purchase all Securities then outstanding at a purchase price in cash
equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date (subject to the right of Holders
of record on the relevant Interest Record Date to receive interest due on the
relevant Interest Payment Date). The Issuers' obligations may be satisfied if a
third party makes the Offer to Purchase in the manner, at the times and
otherwise in compliance with the requirements of this Indenture applicable to an
Offer to Purchase made by the Issuers and purchases all Securities validly
tendered and not withdrawn under such Offer to Purchase. Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any portion
of a Security tendered must be tendered in an integral multiple of $1,000
principal amount.
(b) Prior to the mailing of the notice referred to in clause (a) above, but
in any event within 30 days following any Change of Control, the Issuers
covenant to (i) repay in full and terminate all commitments under Indebtedness
under the New Credit Facility and all other Senior Indebtedness the terms of
which require repayment upon a Change of Control or offer to repay in full and
terminate all commitments under all Indebtedness under the New Credit Facility
and all other such Senior Indebtedness and to repay the Indebtedness owed to
each lender which has accepted such offer or (ii) obtain the requisite consents
under the New Credit Facility and all other Senior Indebtedness to permit the
repurchase of the Securities pursuant to the Offer to Purchase. The Issuers
shall first comply with the covenant in the immediately preceding sentence
before they shall be required to repurchase Securities pursuant to the Offer to
Purchase. The Issuers' failure to comply with the covenant described in the
second preceding sentence or in clause (a) above shall constitute an Event of
Default described in clause (iii) (and not in clause (ii)) of Section 6.01.
(c) On or prior to the Purchase Date specified in the Offer to Purchase,
the Issuers shall (i) accept for payment all Securities or portions thereof
validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent or,
if an Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.04, money sufficient to pay the Purchase Price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee for cancellation all Securities so accepted together
with an Officers' Certificate stating the Securities or portions thereof
accepted for payment by the Issuers. The Paying Agent (or an Issuer, if so
acting) shall promptly mail or deliver to Holders of Securities so accepted,
payment in an amount equal to the Purchase Price for such Securities, and the
Trustee shall promptly authenticate and mail or deliver to each Holder of
Securities a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Issuers to the Holder thereof. The Issuers shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
(d) If the Issuers make an Offer to Purchase, the Issuers will comply with
all applicable tender offer laws and regulations, including, to the extent
applicable, Section 14(e) and Rule 14e-1 under the Exchange Act, and any other
applicable Federal or state securities laws and regulations and any applicable
requirements of any securities exchange on which the Securities are listed, and
any violation of the provisions of this Indenture relating to such Offer to
Purchase occurring as a result of such compliance shall not be deemed a Default
or an Event of Default.
SECTION 4.15 Limitation on Other Senior Subordinated Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary that is
a Guarantor to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is subordinate in right of payment to any
Indebtedness of the Company or any Indebtedness of any Restricted Subsidiary
that is a Guarantor, as the case may be, unless such Indebtedness is either (a)
pari passu in right of payment with the Securities or such Guarantor's
Guarantee, as the case may be, or (b) subordinate in right of payment to the
Securities or such Guarantor's Guarantee, as the case may be, in the same manner
and at least to the same extent as the Securities are subordinate to Senior
Indebtedness or such Guarantor's Guarantee is subordinate to such Guarantor's
Senior Indebtedness, as the case may be.
The Company shall not permit any Guarantor to, and no Guarantor shall,
directly or indirectly, Incur any Indebtedness that by its terms would expressly
rank senior in right of payment to the Guarantee of such Guarantor and expressly
rank subordinate in right of payment to any Guarantor Senior Indebtedness of
such Guarantor.
SECTION 4.16 Limitations on Dividend and Other Payment Restrictions Affecting
Restricted
Subsidiaries.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to: (a)(i) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries (1) on
its Capital Stock or (2) with respect to any other interest or participation in,
or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries; (b) make loans or advances to the Company or
any of its Restricted Subsidiaries; or (c) sell, lease or transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries;
except (in each case) for such encumbrances or restrictions existing under or by
reason of: (1) contractual encumbrances or restrictions in effect on the Issue
Date, including pursuant to the New Credit Facility and its related
documentation and the Senior Discount Indenture; (2) this Indenture and the
Securities; (3) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature discussed in clause
(c) above on the property so acquired; (4) applicable law or any applicable
rule, regulation or order; (5) any agreement or other instrument of a Person
acquired by the Company or any Restricted Subsidiary in existence at the time of
such acquisition (but not created in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person, so
acquired; (6) contracts for the sale of assets, including, without limitation,
customary restrictions with respect to a Subsidiary pursuant to an agreement
that has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary; (7) secured Indebtedness
otherwise permitted to be incurred pursuant to Sections 4.04 and 4.18 of this
Indenture that limit the right of the debtor to dispose of the assets securing
such Indebtedness; (8) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary course of
business; (9) other Indebtedness of Foreign Subsidiaries permitted to be
incurred subsequent to the Issue Date pursuant to the provisions of Section 4.04
of this Indenture; (10) customary provisions in joint venture agreements and
other similar agreements entered into in the ordinary course of business; (11)
customary provisions contained in leases and other agreements entered into in
the ordinary course of business; (12) any encumbrances or restrictions of the
type referred to in clauses (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (11) above, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Board of
Directors of the Company, no more restrictive with respect to such dividend and
other payment restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing; (13) any
encumbrances or restrictions that are no more restrictive
than those contained in the New Credit Facility as in effect on the Issue Date;
or (14) which will not in the aggregate cause the Company Issuers not to have
the funds necessary to pay the principal of, premium, if any, or interest on the
Securities.
SECTION 4.17 [Intentionally Omitted]
SECTION 4.18 Limitation on Liens.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly create, incur, assume or
suffer to exist any Lien (other than a Permitted Lien) that secures any Pari
Passu Indebtedness or Subordinated Indebtedness on any asset or property of the
Company or such Restricted Subsidiary, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, unless the Securities
are equally and ratably secured with the obligations so secured or until such
time as such obligations are no longer secured by a Lien.
(b) No Guarantor will directly or indirectly create, incur, assume or
suffer to exist any Lien (other than a Permitted Lien) that secures any Pari
Passu Indebtedness or Subordinated Indebtedness of such Guarantor on any asset
or property of such Guarantor or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless the Guarantee of such
Guarantor is equally and ratably secured with the obligations so secured or
until such time as such obligations are no longer secured by a Lien.
SECTION 4.19 Limitations on Guarantees of Indebtedness by Restricted
Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary to guarantee the
payment of any Indebtedness of the Company or any Indebtedness of any other
Restricted Subsidiary unless such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture to this Indenture providing for a
guarantee of payment of the Securities by such Restricted Subsidiary, except
that (A) if the Securities are subordinated in right of payment to such
Indebtedness, the Guarantee under the supplemental indenture shall be
subordinated to such Restricted Subsidiary's guarantee with respect to such
Indebtedness substantially to the same extent as the Securities are subordinated
to such Indebtedness under this Indenture and (B) if such Indebtedness is by its
express terms subordinated in right of payment to the Securities, any such
guarantee of such Restricted Subsidiary with respect to such Indebtedness shall
be subordinated in right of payment to such Restricted Subsidiary's Guarantee
with respect to the Securities substantially to the same extent as such
Indebtedness is subordinated to the Securities; provided that this paragraph (a)
shall not be applicable to any guarantee by any Restricted Subsidiary (x) that
(A) existed at the time such Person became a Restricted Subsidiary of the
Company and (B) was not incurred in connection with, or in contemplation of,
such Person
becoming a Restricted Subsidiary of the Company or (y) that guarantees the
payment of Obligations of the Company or any Restricted Subsidiary under the New
Credit Facility or any other bank facility which is designated as Senior
Indebtedness and any refunding, refinancing or replacement thereof, in whole or
in part, provided that such refunding, refinancing or replacement thereof
constitutes Senior Indebtedness and is not incurred pursuant to a registered
offering of securities under the Securities Act or a private placement of
securities (including under Rule 144A) pursuant to an exemption from the
registration requirements of the Securities Act (other than securities issued
pursuant to any bank or similar credit facility (including the New Credit
Facility)), which private placement provides for registration rights under the
Securities Act (any guarantee excluded by operations of this clause (y) being an
"Excluded Guarantee").
(b) Notwithstanding the foregoing and the other provisions of this
Indenture, any Guarantee by a Restricted Subsidiary of the Securities shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release or
discharge of the guarantee which resulted in the creation of such Guarantee,
except a discharge or release by or as a result of payment under such guarantee.
ARTICLE V
MERGERS; SUCCESSORS
SECTION 5.1 Mergers, Sale of Assets, etc.
(a) The Company may not consolidate or merge with or into or wind up into
(whether or not the Company is the surviving entity), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to any Person unless (i) the
Company is the surviving entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been made
is a corporation, partnership or limited liability company organized or existing
under the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (the Company or such Person, as the case may
be, being herein called the "Successor Company"); (ii) the Successor Company (if
other than the Company) expressly assumes all the obligations of the Company
under this Indenture and the Securities pursuant to a supplemental indenture or
other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of Default shall
have occurred and be continuing; (iv) immediately after giving pro forma effect
to such transaction, as if such transaction had occurred
at the beginning of the applicable four-quarter period, either (A) the Successor
Company (if other than CapCo I) would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first sentence of Section 4.04 of this Indenture or (B) the Fixed
Charge Coverage Ratio for the Successor Company (if other than CapCo I) and its
Restricted Subsidiaries would be greater than such ratio for the Company and its
Restricted Subsidiaries immediately prior to such transaction; and (v) 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. Notwithstanding
the foregoing clauses (iii) and (iv), but subject to the foregoing clauses (i),
(ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to the Company or to another
Restricted Subsidiary and (b) the Company may merge with or transfer all of its
properties and assets to an Affiliate (including, without limitation, CapCo I)
in connection with an IPO Reorganization so long as the amount of Indebtedness
of the Company and its Restricted Subsidiaries immediately thereafter does not
exceed the amount permitted under Section 4.04 (it being understood that after
such transfer of such property and assets in connection with an IPO
Reorganization, the Company may dissolve). The Successor Company will succeed
to, and be substituted for, the Company under this Indenture and the Securities.
(b) Each Guarantor, if any, shall not, and the Company will not permit a
Guarantor to, consolidate or merge with or into or wind up into (whether or not
such Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, any Person unless (i) such
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership or limited liability company organized
or existing under the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such Guarantor or such Person, as the
case may be, being herein called the "Successor Guarantor"); (ii) the Successor
Guarantor (if other than such Guarantor) expressly assumes all the obligations
of such Guarantor under this Indenture and such Guarantor's Guarantee pursuant
to a supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no Default
or Event of Default shall have occurred and be continuing; and (iv) the
Guarantor shall have delivered or caused to be 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 Guarantor will succeed to, and be
substituted for, such Guarantor under this Indenture and such Guarantor's
Guarantee.
SECTION 5.2 Successor Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Company or a
Guarantor, as the case may be, is not the Successor Company or Successor
Guarantor, as the case may be, and the Successor Company or Successor Guarantor,
as the case may be, is to assume all the Obligations of the Company under the
Securities, this Indenture and the Registration Rights Agreement or of such
Guarantor under its Guarantee, this Indenture and the Registration Rights
Agreement, as the case may be, pursuant to a supplemental indenture, such
Successor Company or Successor Guarantor, as the case may be, shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or such Guarantor, as the case may be, and the Company shall be discharged and
released from its Obligations under this Indenture and the Securities or such
Guarantor shall be discharged from its Obligations under this Indenture and its
Guarantee, as the case may be.
In the event of an IPO Reorganization, CapCo I shall succeed to, and be
substituted for, and may exercise every right and power of, the Company, and the
Company shall be discharged and released from its Obligations under this
Indenture and the Securities and may be dissolved, subject to CapCo I's
compliance with Section 5.01(a)(ii) above.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
Each of the following shall be an "Event of Default" for purposes of this
Indenture:
(i) the failure to pay interest on any Security when the same becomes
due and payable and the default continues for a period of 30 days (whether
or no such payment shall be prohibited by Article Eight of this Indenture);
(ii) the failure to pay the principal on any Security, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase any Security
tendered pursuant to an Offer to Purchase which has actually been made)
(whether or not such payment shall be prohibited by Article Eight of this
Indenture);
(ii) a default in the observance or performance of any other covenant
or agreement contained in this Indenture which default continues for a
period of 60 days after the Company receives written notice specifying the
default (and demanding that such
default be remedied) from the Trustee or the Holders of at least 25% of
the outstanding principal amount of the Securities (except in the case of
a default with respect to Section 5.01 of this Indenture, which will
constitute an Event of Default with such notice requirement but without
such passage of time requirement);
(iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Significant Restricted
Subsidiary, or the acceleration of the final stated maturity of any such
Indebtedness if the aggregate principal amount of such indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at final maturity or which has been
accelerated, aggregates $20.0 million or more at any time;
(v) one or more judgments in an aggregate amount in excess of $20.0
million shall have been rendered against the Company or any Significant
Restricted Subsidiary and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable, and in the event such judgment is covered by
insurance, an enforcement proceeding has been commenced by any creditor
upon such judgment or decree which is not promptly stayed;
(vi) any Guarantee by a Significant Restricted Subsidiary shall become
null or void or unenforceable (other than in accordance with the terms of
the Senior Subordinated Indenture) or any such Guarantor shall deny its
obligations under its Guarantee;
(vii) the Company or any Significant Restricted Subsidiary pursuant to
or within the meaning of any Bankruptcy Law: (a) admits in writing its
inability to pay its debts generally as they become due; (b) commences a
voluntary case or proceeding; (c) consents to the entry of an order for
relief against it in an involuntary case or proceeding; (d) consents or
acquiesces in the institution of a bankruptcy or insolvency proceeding
against it; (e) consents to the appointment of a Custodian of it or for all
or substantially all of its property; or (f) makes a general assignment for
the benefit of its creditors, or any of them takes any action to authorize
or effect any of the foregoing; or
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company or any
Significant Restricted Subsidiary in an involuntary case or proceeding; (b)
appoints a Custodian of the Company or any Significant Restricted
Subsidiary for all or substantially all of its property; or (c) orders the
liquidation of the Company or any Significant Restricted Subsidiary; and in
each case the order or decree remains unstayed and in effect for 60 days;
provided,
however, that if the entry of such order or decree is appealed and
dismissed on appeal, then the Event of Default hereunder by reason of
the entry of such order or decree shall be deemed to have been cured.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
SECTION 6.2 Acceleration.
If an Event of Default with respect to the Securities (other than an Event
of Default specified in clause (vii) or (viii) of Section 6.01 with respect to
the Company) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of the outstanding Securities by notice in
writing to the Company (and to the Trustee if given by the Holders) may declare
the unpaid principal of (and premium, if any) and accrued interest to the date
of acceleration on all outstanding Securities to be due and payable immediately
and, upon any such declaration, such principal amount (and premium, if any) and
accrued interest, notwithstanding anything contained in this Indenture or the
Securities to the contrary, shall become immediately due and payable; provided,
however, that so long as the New Credit Facility shall be in full force, if an
Event of Default shall have occurred and be continuing (other than an Event of
Default specified in clause (vii) or (viii) of Section 6.01 with respect to the
Company), the Securities shall not become due and payable until the earlier to
occur of (x) five Business Days following delivery of a written notice by the
Trustee of such acceleration of the Securities to the agent under the New Credit
Facility and (y) the acceleration (ipso facto or otherwise) of any Indebtedness
under the New Credit Facility.
If an Event of Default specified in clause (vii) or (viii) of Section 6.01
with respect to the Company occurs, all unpaid principal of (and premium, if
any) and accrued interest on all outstanding Securities shall ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or decree of the
money due in respect of the Securities has been obtained, the Holders of not
less than a majority in aggregate principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an acceleration and its
consequences if all existing Events of Default (other than the nonpayment of
principal of and interest on the Securities which has become due solely by
virtue of such acceleration) have been cured or waived and if the rescission
would not conflict with any judgment or decree. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.4 Waiver of Past Default.
Subject to Sections 2.9, 6.7 and 10.2, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (i) and (ii) of Section 6.01 or a Default in
respect of any term or provision of this Indenture that may not be amended or
modified without the consent of each Holder affected as provided in Section
10.02. The Issuers shall deliver to the Trustee an Officers' Certificate stating
that the requisite percentage of Holders have consented to such waiver and
attaching copies of such consents. In case of any such waiver, the Issuers, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Securities, respectively. This paragraph of this Section
6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss. 316(a)(1)(B)
of the TIA is hereby expressly excluded from this Indenture and the Securities,
as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.5 Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount of
the outstanding Securities may direct the time, method and place of conducting
any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of another Securityholder, or that may involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss or expense caused by
taking such action or following such direction. This Section 6.05 shall be in
lieu of ss. 316(a)(1)(A) of the TIA, and such ss. 316(a)(1)(A) of the TIA is
hereby expressly excluded from this Indenture and the Securities, as permitted
by the TIA.
SECTION 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue a
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.7 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 premium, if any or interest on a
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified in
Section 6.01(i) or (ii) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuers
or any other obligor on the Securities for the whole amount of principal and
accrued interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Securities and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Issuers (or any other
obligor upon the Securities), their respective creditors or their respective
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Securityholder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant to this Article Six,
it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Issuers.
The Trustee, upon prior written notice to the Issuers, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder or
group of Holders of more than 10% in aggregate principal amount of the
outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Securities on or
after the respective due dates expressed in the Security.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of such
duties as are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein,
upon certificates or opinions conforming to the requirements of this
Indenture; however, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine such certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall
have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive from such Holders an indemnity satisfactory
to it in its sole discretion against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2 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 and/or an Opinion of Counsel, which shall conform to the
provisions of Section 13.5. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection and
shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) Any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Securityholders pursuant to this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(h) 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, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, 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 Issuers, personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless the
Trustee shall
have received written notice thereof at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
SECTION 7.3 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 Issuers or their
respective Affiliates with the same rights it would have if it were not Trustee,
subject to Section 7.10 hereof. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4 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 Issuers in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 30 days
after the occurrence thereof. Except in the case of a Default or an Event of
Default in payment of principal of or interest on any Security or a Default or
Event of Default in complying with Section 5.01, 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 interest of Securityholders.
This Section 7.05 shall be in lieu of the proviso to ss. 315(b) of the TIA and
such proviso to ss. 315(b) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
SECTION 7.6 Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to
each Securityholder a report dated as of such May 15 that complies with TIA ss.
313(a). The Trustee also shall comply with TIA ss. 313(b), (c) and (d).
A copy of each such 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 Issuers shall promptly notify the Trustee in writing
if the Securities become listed on any
stock exchange or of any delisting thereof.
SECTION 7.7 Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such compensation as
the Issuers and the Trustee shall from time to time agree in writing for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
(including fees, disbursements and expenses of its agents and counsel) incurred
or made by it in addition to the compensation for its services except any such
disbursements, expenses and advances as may be attributable to the Trustee's
negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 9.1 hereof.
The Issuers shall indemnify the Trustee for, and hold it harmless against
any and all loss, damage, claims, liability or expense, including taxes (other
than franchise taxes imposed on the Trustee and taxes based upon, measured by or
determined by the income of the Trustee), arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to its own negligence or bad faith. The Trustee shall notify the
Issuers promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Issuers shall
not relieve the Issuers of their obligations hereunder. The Issuers shall defend
the claim and the Trustee shall cooperate in the defense (and may employ its own
counsel) at the Issuers' expense; provided, however, that the Issuers'
reimbursement obligation with respect to counsel employed by the Trustee will be
limited to the reasonable fees and expenses of such counsel.
The Issuers need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Issuers need not
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee as a result of the violation of this Indenture by the Trustee.
To secure the Issuers' payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Securities
or the Purchase Price or redemption price of any Securities to be purchased
pursuant to an Offer to Purchase or redeemed.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) occurs, the expenses (including
the reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Issuers' obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Issuers' obligations pursuant to
Article Nine and any rejection or termination under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuers in writing.
The Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee and the Issuers in writing and
may appoint a successor Trustee with the Issuers' consent. The Issuers may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuers shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the Securities may appoint a successor Trustee
to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. As promptly as practicable after
that, the retiring Trustee shall transfer, after payment of all sums then owing
to the Trustee pursuant to Section 7.07, all property held by it as Trustee to
the successor Trustee, subject to the Lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition, at the expense of the Issuers, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Issuers' obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or
banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA xx.xx. 310(a)(1) and 310(a)(2). 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. If the Trustee has or shall acquire
any "conflicting interest" within the meaning of TIA ss. 310(b), the Trustee and
the Issuers shall comply with the provisions of TIA ss. 310(b); provided,
however, that there shall be excluded from the operation of TIA ss. 310(b)(1)
any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Issuers are outstanding if
the requirements for such exclusion set forth in TIA ss. 310(b)(1) are met. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, the Trustee shall resign immediately in the
manner and with the effect hereinbefore specified in this Article Seven.
SECTION 7.11 Preferential Collection of Claims Against Issuers.
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 therein.
ARTICLE VIII
SUBORDINATION OF SECURITIES
SECTION 8.1 Securities Subordinated to Senior Indebtedness.
Each Issuer covenants and agrees, and the Trustee and each Holder of the
Securities by his acceptance thereof likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article Eight; and
each person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities by the Issuers shall, to the extent
and in the manner set forth in this Article Eight, be subordinated and junior in
right of payment to the prior payment in full in cash or Cash Equivalents of all
amounts payable under Senior Indebtedness of the Issuers.
SECTION 8.2 No Payment on Securities in Certain Circumstances.
If any default occurs and is continuing in the payment when due, whether at
maturity, upon any redemption, by acceleration or otherwise, of any principal
of, interest on, unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Senior Indebtedness, no payment of
any kind or character shall be made by or on behalf of either of the Issuers or
any other Person on either of their behalf with respect to any Obligations on
the Securities or to acquire any of the Securities for cash or property or
otherwise (except that holders of the Securities may receive payments from a
trust described under Article Nine so long as, on the date or dates the
respective amounts were paid into the trust, such payments were made with
respect to the Securities without violating the provisions of Article Eight or
Article Twelve of this Indenture (a "Defeasance Trust Payment")).
In addition, if any other event of default occurs and is continuing with
respect to any Designated Senior Indebtedness, as such event of default is
defined in the instrument creating or evidencing such Designated Senior
Indebtedness, permitting the holders of such Designated Senior Indebtedness then
outstanding to accelerate the maturity thereof and if the Representative for the
respective issue of Designated Senior Indebtedness gives written notice of the
event of default to the Trustee (a "Payment Blockage Notice"), then, unless and
until all events of default have been cured or waived or have ceased to exist or
the Trustee receives notice from the Representative for the respective issue of
Designated Senior Indebtedness terminating the Payment Blockage Period, during
the 180 days after the delivery of such Payment Blockage Notice (the "Payment
Blockage Period"), neither of the Issuers nor any other Person on either of
their behalf shall (x) make any payment of any kind or character with respect to
any Obligations on the Securities or (y) acquire any of the Securities for cash
or property or
otherwise (except that holders of the Securities may receive Defeasance Trust
Payments).
Notwithstanding anything herein to the contrary, in no event will a Payment
Blockage Period extend beyond 180 days from the date the Payment Blockage Notice
is delivered and only one such Payment Blockage Period may be commenced within
any 360 consecutive days. No event of default which existed or was continuing on
the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness shall be, or be made, the basis for commencement
of a second Payment Blockage Period by the Representative of such Designated
Senior Indebtedness whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action,
or any breach of any financial covenants for a period commencing after the date
of commencement of such Payment Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
SECTION 8.3 Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets of any of the Issuers of any
kind or character, whether in cash, property or securities, to creditors upon
any liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors or marshaling of assets of either of the Issuers or in a
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to either of the Issuers or their respective property, whether
voluntary or involuntary, all Obligations due or to become due upon all Senior
Indebtedness shall first be paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of Senior
Indebtedness, before any payment or distribution of any kind or character is
made on account of any Obligations on the Securities, or for the acquisition of
any of the Securities for cash or property or otherwise (except that holders of
the Securities may receive Permitted Junior Securities or Defeasance Trust
Payments). Before any payment may be made by, or on behalf of, such Issuer of
the principal of, premium, if any, or interest on the Securities upon any such
dissolution or winding-up or total liquidation or reorganization, any payment or
distribution of assets or securities of such Issuer of any kind or character,
whether in cash, property or securities (excluding any payment or distribution
of Permitted Junior Securities and excluding any Defeasance Trust Payment), to
which the Holders of the Securities or the Trustee on their behalf would be
entitled, but for the subordination provisions of this Indenture, shall be made
by such Issuer or by any receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, directly to the
holders of the Senior Indebtedness of such Issuer (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders)
or their representatives or to the trustee or trustees or agent or agents under
any agreement or indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all such Senior Indebtedness in full in cash after giving
effect to any prior or concurrent payment, distribution or provision therefor to
or for the holders of such Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of an Issuer of any kind or character, whether in cash, property or
securities (excluding any payment or distribution of Permitted Junior Securities
and excluding any Defeasance Trust Payment), shall be received by the Trustee or
any Holder of Securities at a time when such payment or distribution is
prohibited by Section 8.03(a) and before all obligations in respect of Senior
Indebtedness of such Issuer are paid in full in cash or Cash Equivalents, such
payment or distribution shall be received and held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness of
such Issuer (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders) or their respective representatives,
or to the trustee or trustees or agent or agents under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of such Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full in
cash or Cash Equivalents after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company with or
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 8.03
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
SECTION 8.4 Subrogation.
Upon the payment in full in cash or Cash Equivalents of all Senior
Indebtedness of an Issuer, or provision for payment, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of an Issuer made on such Senior Indebtedness until the principal of
and interest on the Securities shall be paid in full in cash or Cash
Equivalents; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of an Issuer of any
cash, property or securities to which the Holders of the Securities or the
Trustee on their behalf would be entitled except for the provisions of this
Article Eight, and no payment over pursuant to the provisions of this Article
Eight to the holders of Senior Indebtedness of an Issuer by Holders of the
Securities or the Trustee on their behalf shall, as between an Issuer, its
creditors other than holders of Senior Indebtedness of such Issuer, and the
Holders of the Securities, be deemed to be a payment by such Issuer to or on
account of the Senior Indebtedness of such Issuer. It is understood that the
provisions of this Article Eight are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of the Senior Indebtedness of the Issuers, on the other hand.
If any payment or distribution to which the Holders of the Securities would
otherwise have been entitled but for the provisions of this Article Eight shall
have been applied, pursuant to the provisions of this Article Eight, to the
payment of all amounts payable under Senior Indebtedness, then and in such case,
the Holders of the Securities shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount required to make payment in full
in cash of such Senior Indebtedness.
SECTION 8.5 Obligations of Issuers Unconditional.
Nothing contained in this Article Eight or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Issuers and the
Holders of the Securities, the obligation of the Issuers, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Issuers other than
the holders of the Senior Indebtedness of the Issuers, nor shall anything herein
or therein prevent the Holder of any Security or the Trustee on their behalf
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Eight of
the holders of the Senior Indebtedness of the Issuers in respect of cash,
property or securities of an Issuer received upon the exercise of any such
remedy.
Without limiting the generality of the foregoing, nothing contained in this
Article Eight shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Indebtedness of the
Issuers then due and payable shall first be paid in full in cash or Cash
Equivalents before the Holders of the Securities or the Trustee are entitled to
receive any direct or indirect payment from the Issuers of principal of or
interest on the Securities.
SECTION 8.6 Notice to Trustee.
The Issuers shall give prompt written notice to the Trustee of any fact
known to the Issuers which would prohibit the making of any payment to or by the
Trustee in respect of
the Securities pursuant to the provisions of this Article Eight. The Trustee
shall not be charged with knowledge of the existence of any event of default
with respect to any Senior Indebtedness of an Issuer or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing at its Corporate Trust Office
to that effect signed by an Officer of the Company, or by a holder of Senior
Indebtedness or trustee or agent therefor; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 8.06 at least two
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Security), then, regardless of
anything herein to the contrary, the Trustee shall have full power and authority
to receive any moneys from the Issuers and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 8.06 shall limit the right of the holders of Senior
Indebtedness of the Issuers to recover payments as contemplated by Section 8.03.
The Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of any Senior
Indebtedness of the Issuers (or a trustee on behalf of, or other representative
of, such holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee or representative on behalf of any such
holder.
In the event that the Trustee determines in good faith that any evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of an Issuer to participate in any payment or distribution pursuant
to this Article Eight, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness of an Issuer held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Eight, 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.
SECTION 8.7 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities referred to in
this Article Eight, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness of an
Issuer and other indebtedness of an Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Eight.
SECTION 8.8 Trustee's Relation to Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Eight with respect to any Senior Indebtedness of an Issuer
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Indebtedness of an Issuer, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness of an Issuer, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eight, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
an Issuer shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of an Issuer (except as provided in Section 8.03(b)). The Trustee
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to an Issuer or to
any other person cash, property or securities to which any holders of Senior
Indebtedness of an Issuer shall be entitled by virtue of this Article Eight or
otherwise.
SECTION 8.9 Subordination Rights Not Impaired by Acts or Omissions of the
Issuers or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness of an
Issuer to enforce subordination as provided herein shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of an Issuer
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by an Issuer with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
The provisions of this Article Eight are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness of the
Issuers.
SECTION 8.10 Securityholders Authorize Trustee To Effectuate Subordination of
Securities.
Each Holder of Securities by his acceptance of such Securities authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eight, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of an Issuer (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or
otherwise) tending towards liquidation of the business and assets of an Issuer,
the filing of a claim for the unpaid balance of its or his Securities in the
form required in those proceedings.
SECTION 8.11 This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Eight shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (a), (b) or (c) of Section 6.01.
SECTION 8.12 Trustee's Compensation Not Prejudiced.
Nothing in this Article Eight shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 8.13 No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09, the holders of
Senior Indebtedness of an Issuer may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Eight or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness of an Issuer, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding or secured; (b)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing such Senior Indebtedness; (c) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (d) exercise or
refrain from exercising any rights against an Issuer and any other Person.
SECTION 8.14 Subordination Provisions Not Applicable to Money Held in Trust for
Securityholders.
All money and United States Government Obligations deposited in trust with
the Trustee pursuant to and in accordance with Article Nine shall be for the
sole benefit of the Holders and shall not be subject to this Article Eight.
ARTICLE IX
DISCHARGE OF INDENTURE
SECTION 9.1 Termination of Issuers' Obligations.
Subject to the provisions of Article Eight, the Issuers may terminate their
substantive obligations in respect of the Securities by delivering all
outstanding Securities to the Trustee for cancellation and paying all sums
payable by it on account of principal of and interest on all Securities or
otherwise. In addition to the foregoing, subject to the provisions of Article
Eight with respect to the creation of the defeasance trust provided for in the
following clause (i), the Issuers may, provided that no Default or Event of
Default has occurred and is continuing or would arise therefrom (or, with
respect to a Default or Event of Default specified in Section 6.01(vii) or
(viii), occurs at any time on or prior to the 123rd calendar day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until after such 123rd day)) and provided that no default under any
Senior Indebtedness would result therefrom, terminate their substantive
obligations in respect of Article Four (other than Sections 4.01, 4.02, 4.07,
4.09 and 4.11) and Article Five hereof and any Event of Default specified in
Section 6.01 (iii), (iv), (v) or (vi) by (i) depositing with the Trustee, under
the terms of an irrevocable trust agreement, money or United States Government
Obligations sufficient (without reinvestment) to pay all remaining Indebtedness
on the Securities, (ii) delivering to the Trustee either an Opinion of Counsel
or a ruling directed to the Trustee from the Internal Revenue Service to the
effect that the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and termination of obligations,
(iii) delivering to the Trustee an Opinion of Counsel to the effect that the
Issuers' exercise of the option under this Section 9.01 will not result in any
of the Issuers, the Trustee or the trust created by the Issuers' deposit of
funds pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (iv) delivering to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating compliance with all conditions precedent
provided for herein. In addition, subject to the provisions of Article Eight
with respect to the creation of the defeasance trust provided for in the
following clause (i), the Issuers may, provided that no Default or Event of
Default has occurred and is continuing or would arise therefrom (or, with
respect to a Default or Event of Default specified in Section 6.01(vii) or
(viii), occurs at any time on or prior to the 123rd calendar day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until after such 123rd day)) and provided that no default under any
Senior Indebtedness would arise therefrom, terminate all of their substantive
obligations in respect of the Securities (including its obligations to pay the
principal of and interest on the Securities) by (i) depositing with the Trustee,
under the terms of an irrevocable trust agreement, money or United States
Government Obligations sufficient (without reinvestment) to pay all remaining
Indebtedness on the Securities, (ii) delivering to the Trustee either a ruling
directed to the Trustee from the Internal Revenue Service to the effect that the
Holders of the Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and termination of obligations
or an Opinion of Counsel addressed to the Trustee based upon such a ruling or
based on a change in the applicable Federal tax law since the date of this
Indenture to such effect, (iii) delivering to the Trustee an Opinion of Counsel
to the effect that the exercise of the option under this Section 9.01 will not
result in any of the Issuers, the Trustee or the trust created by the deposit of
funds pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act and (iv) delivering to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating compliance with all
conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Issuers' obligations in
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13 and 4.01 (but not
with respect to termination of substantive obligations pursuant to the third
sentence of the foregoing paragraph), 4.02, 7.07, 7.08, 9.03 and 9.04 shall
survive until the Securities are no longer outstanding. Thereafter the Issuers'
obligations in Sections 7.07, 9.03 and 9.04 shall survive.
After such delivery or irrevocable deposit and delivery of an Officers'
Certificate and Opinion of Counsel, the Trustee upon request shall acknowledge
in writing the discharge of the Issuers' obligations under the Securities and
this Indenture except for those surviving obligations specified above.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to this Section 9.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
SECTION 9.2 Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities.
SECTION 9.3 Repayment to Issuers.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to the
Issuers upon written request any money held by it which exceeds the amount
required to make payments under this Indenture. The Trustee shall pay to the
Issuers upon written request any money held by it for the payment of principal
or interest that remains unclaimed for two years; provided, however, that the
Trustee before being required to make any payment may at the expense of the
Issuers cause to be published once in a newspaper of general circulation in The
City of New
York or mail to each Holder entitled to such money notice that such money
remains unclaimed and that, after a date specified therein which shall be at
least 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining shall be repaid to the Issuers. After
payment to the Issuers, Securityholders entitled to money must look to the
Issuers for payment as general creditors unless an applicable abandoned property
law designates another person and all liability of the Trustee or Paying Agent
with respect to such money shall thereupon cease.
SECTION 9.4 Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 9.01 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 Issuers'
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.01 until such
time as the Trustee is permitted to apply all such money or United States
Government Obligations in accordance with Section 9.01; provided, however, that
if the Issuers have made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Issuers shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or United States Government Obligations held by the
Trustee.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Without Consent of Holders.
The Issuers, Holdings and each Guarantor, when authorized by a resolution
of their respective Boards of Directors, and the Trustee may amend or supplement
this Indenture or the Securities without notice to or consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency; provided, however,
that such amendment or supplement does not adversely affect the rights of
any Holder;
(b) to effect the assumption by a successor Person of all obligations
of the Company under the Securities and this Indenture in connection with
any transaction complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to or in
place of
certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or
rights to the Holders;
(f) to make any other change that does not adversely affect the rights
of any Holder under this Indenture;
(g) to evidence the succession of another Person to any Guarantor and
the assumption by any such successor of the covenants of such Guarantor
herein and in the Guarantee in connection with any transaction complying
with Article Five of this Indenture;
(h) to add to the covenants of the Company, Holdings or a Guarantor
for the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company, Holdings or any Guarantor;
(i) to secure the Securities pursuant to the requirements of Section
4.18 or otherwise; or
(j) to reflect the release of a Guarantor from its obligations with
respect to its Guarantee or to add a Guarantor, in each case pursuant to
the requirements of Section 4.19;
provided, however, that the Issuers delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 10.1.
SECTION 10.2 With Consent of Holders.
Subject to Section 6.07, the Issuers, Holdings and the Guarantors, when
authorized by a resolution of their respective Boards of Directors, and the
Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to Section 6.07, the Holders of a majority in
principal amount of the outstanding Securities may waive compliance by the
Issuers, Holdings or any Guarantor with any provision of this Indenture or the
Securities. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(a) reduce the rate of or change or have the effect of changing the
tie for
payment of interest, including defaulted interest, on any Security;
(b) reduce the principal of or change or have the effect of changing
the fixed maturity of any Security, or change the date on which any
Security may be subject to redemption or repurchase, or reduce the
redemption or repurchase price therefor;
(c) make any Security payable in money other than that stated in the
Security;
(d) amend, change or modify in any material respect the obligation of
the Issuers to make and consummate an Offer to Purchase in the event of a
Change of Control or with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with respect
thereto;
(e) modify any provisions of Section 6.04 (other than to add sections
of this Indenture or the Securities subject thereto) or 6.07 or this
Section 10.02 (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without the
consent of each Securityholder affected);
(f) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default;
(g) waive a Default in the payment of the principal of or interest on
or redemption or purchase payment with respect to any Security (except a
rescission of acceleration of the Securities by the Holders as provided in
Section 6.02 and a waiver of the payment default that resulted from such
acceleration);
(h) modify the ranking or priority of the Securities, the Holdings
Guarantee or any Guarantee, or modify the definition of Senior
Indebtedness, or amend or modify any of the provisions of Article Eight or
Article Twelve in any manner adverse to the Holders; or
(i) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with this
Indenture.
It shall not be necessary for the consent of the Holders under this Section
10.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 10.02 becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
SECTION 10.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 10.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by notice to the Trustee or the Issuers received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in any of clauses (a)
through (i) of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 10.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Issuers or the Trustee
so determine, the Issuers in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.6 Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Ten is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of the Issuers, Holdings and
any Guarantors, enforceable in accordance with its terms (subject to customary
exceptions). The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
ARTICLE XI
GUARANTEE
SECTION 11.1 Unconditional Guarantee.
Holdings and each Guarantor hereby unconditionally, jointly and severally,
guarantee to each Holder of a Security authenticated by the Trustee and to the
Trustee and its successors and assigns that: the principal of and interest on
the Securities will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise, and interest on
the overdue principal and interest on any overdue interest on the Securities and
all other obligations of the Issuers to the Holders or the Trustee hereunder or
under the Securities will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; subject, however, to the
limitations set forth in Section 11.03. Holdings and each Guarantor hereby
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Securities or this Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Securities with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuers, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of Holdings or a Guarantor. Holdings and each Guarantor
hereby waive diligence, presentment, demand of payment, filing of claims with a
court in the event of
insolvency or bankruptcy of an Issuer, any right to require a proceeding first
against an Issuer, protest, notice and all demands whatsoever and covenants that
the Holdings Guarantee or the Guarantee, as the case may be, will not be
discharged except by complete performance of the obligations contained in the
Securities and this Indenture. If any Holder or the Trustee is required by any
court or otherwise to return to an Issuer, Holdings, any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
an Issuer, Holdings or any Guarantor, any amount paid by an Issuer, Holdings or
any Guarantor to the Trustee or such Holder, the Holdings Guarantee and each
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Holdings and each Guarantor further agree that, as between
each of Holdings or a Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purpose of the
Holdings Guarantee and each Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall become due and payable by Holdings and each Guarantor for the purpose of
the Holdings Guarantee and each Guarantee.
SECTION 11.2 Severability.
In case any provision of this Article Twelve shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.3 Limitation of Guarantor's Liability.
Holdings and each Guarantor, and by its acceptance hereof each Holder and
the Trustee, hereby confirm that it is the intention of all such parties that
the Holdings Guarantee and each Guarantee not constitute a fraudulent transfer
or conveyance for purposes of title 11 of the United States Code, as amended,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar U.S. Federal or state or other applicable law. To effectuate the
foregoing intention, the Holders, Holdings and each Guarantor hereby irrevocably
agree that the obligations of Holdings and each Guarantor under the Holdings
Guarantee and each Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of Holdings or
such Guarantor, as the case may be, and after giving effect to any collections
from or payments made by or on behalf of Holdings or any other Guarantor, as the
case may be, in respect of the obligations of Holdings or such other Guarantor,
as the case may be, pursuant to Section 11.04, result in the obligations of
Holdings or such Guarantor not constituting such a fraudulent transfer or
conveyance.
SECTION 11.4 Contribution.
In order to provide for just and equitable contribution among Holdings and
the Guarantors, Holdings and the Guarantors agree, inter se, that in the event
any payment or distribution is made by Holdings or any Guarantor (a "Funding
Guarantor") under the Holdings Guarantee or a Guarantee, as the case may be,
such Funding Guarantor shall be entitled to a contribution from Holdings and all
other Guarantors in a pro rata amount, based on the net assets of Holdings and
each Guarantor (including the Funding Guarantor), determined in accordance with
GAAP, subject to Section 11.03, for all payments, damages and expenses incurred
by such Funding Guarantor in discharging the Issuers' obligations with respect
to the Securities or Holdings or any other Guarantor's obligations under the
Holdings Guarantee or a Guarantee, as the case may be.
SECTION 11.5 Execution of Guarantee.
To further evidence the Holdings Guarantee and each Guarantee to the
Holders, each of Holdings and the Guarantors hereby agree to execute a guarantee
to be endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Holdings and each Guarantor hereby agree that its guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a guarantee. Each such guarantee shall be
signed on behalf of Holdings and each Guarantor by its Chairman of the Board,
its President or one of its Vice Presidents prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such guarantee on behalf of Holdings or such Guarantor. Such
signature upon the guarantee may be manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the guarantee, and in
case such officer who shall have signed the guarantee shall cease to be such
officer before the Security on which such guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Issuers, such
Security nevertheless may be authenticated and delivered or disposed of as
though the Person who signed the guarantee had not ceased to be such officer of
Holdings or such Guarantor.
SECTION 11.6 Subordination of Subrogation and Other Rights.
Holdings and each Guarantor hereby agree that any claim against an Issuer
that arises from the payment, performance or enforcement of such Guarantor's
obligations under the Holdings Guarantee or a Guarantee or this Indenture,
including, without limitation, any right of subrogation, shall be subject and
subordinate to, and no payment with respect to any such claim of Holdings or
such Guarantor shall be made before, the payment in full in cash of all
outstanding Securities in accordance with the provisions provided therefor in
this Indenture.
ARTICLE XII
SUBORDINATION OF GUARANTEE
SECTION 12.1 Guarantee Obligations Subordinated to Senior Indebtedness.
Holdings and each Guarantor covenants and agrees, and the Trustee and each
Holder of the Securities by his acceptance thereof likewise covenant and agree,
that the Holdings Guarantee and each Guarantee shall be issued subject to the
provisions of this Article Twelve; and each person holding any Security, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees that all payments of the principal of and interest on the Securities
pursuant to the Holdings Guarantee and each Guarantee made by or on behalf of
Holdings or any Guarantor shall, to the extent and in the manner set forth in
this Article Twelve, be subordinated and junior in right of payment to the prior
payment in full in cash or Cash Equivalents of all amounts payable under Senior
Indebtedness of Holdings or such Guarantor.
SECTION 12.2 No Payment in Certain Circumstances; Payment Over of Proceeds upon
Dissolution, etc.
(a) Upon any payment or distribution of assets of Holdings or a Guarantor
of any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors or marshaling of assets of Holdings or a Guarantor or
in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to Holdings or a Guarantor or their respective property,
whether voluntary or involuntary, all Obligations due or to become due upon all
Senior Indebtedness shall first be paid in full in cash or Cash Equivalents, or
such payment duly provided for to the satisfaction of the holders of Senior
Indebtedness, before any payment or distribution of any kind or character is
made by or on behalf of Holdings or such Guarantor, as the case may be, on
account of any Obligations on the Holdings Guarantee or the Guarantee of such
Guarantor, as the case may be, or for the acquisition of any of the Securities
for cash or property or otherwise (except that holders of the Securities may
receive Permitted Junior Securities or Defeasance Trust Payments). Before any
payment may be made by, or on behalf of, Holdings or any Guarantor of the
principal of, premium, if any, or interest on the Securities upon any such
dissolution or winding-up or total liquidation or reorganization, any payment or
distribution of assets or securities of Holdings or such Guarantor, as the case
may be, of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee on their behalf would be
entitled, but for the subordination provisions of this Indenture, shall be made
by Holdings or such Guarantor, as the case may be, or by any receiver, trustee
in bankruptcy, liquidation trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Indebtedness of Holdings or
such Guarantor, as the case may be, (pro rata
to such holders on the basis of the respective amounts of such Senior
Indebtedness held by such holders) or their representatives or to the trustee or
trustees or agent or agents under any agreement or indenture pursuant to which
any of such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of Holdings or any Guarantor of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or any Holder of
Securities at a time when such payment or distribution is prohibited by Section
12.02(a) and before all obligations in respect of the Senior Indebtedness of
Holdings or such Guarantor, as the case may be, are paid in full in cash or Cash
Equivalents, such payment or distribution shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of such
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of such Senior Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the payment
of such Senior Indebtedness remaining unpaid until all such Senior Indebtedness
has been paid in full in cash or Cash Equivalents after giving effect to any
prior or concurrent payment, distribution or provision therefor to or for the
holders of such Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any Guarantor
with or into, another corporation or the liquidation or dissolution of any
Guarantor following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
If any default occurs and is continuing in the payment when due, whether at
maturity, upon any redemption, by acceleration or otherwise, of any principal
of, interest on, unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Senior Indebtedness, no payment of
any kind or character shall be made by or on behalf of Holdings or a Guarantor
or any other Person on its behalf with respect to any Obligations on the
Holdings Guarantee or the Guarantee of such Guarantor or to acquire any of the
Securities for cash or property or otherwise (except that holders of the
Securities may receive Defeasance Trust Payments).
In addition, if any other event of default occurs and is continuing with
respect to any Designated Senior Indebtedness, as such event of default is
defined in the instrument creating or evidencing such Designated Senior
Indebtedness, permitting the holders of such Designated Senior Indebtedness then
outstanding to accelerate the maturity thereof and if the Representative for the
respective issue of Designated Senior Indebtedness gives a Payment Blockage
Notice to the Trustee, then, unless and until all events of default have been
cured or waived or have ceased to exist or the Trustee receives notice from the
Representative for the respective issue of Designated Senior Indebtedness
terminating the Payment Blockage Period, during the Payment Blockage Period,
neither Holdings nor a Guarantor, nor any other Person on either Holdings' or a
Guarantor's behalf, shall (x) make any payment of any kind or character with
respect to any Obligations on the Holdings Guarantee or the Guarantee of such
Guarantor or (y) acquire any of the Securities for cash or property or otherwise
(except that holders of the Securities may receive Defeasance Trust Payments).
Notwithstanding anything herein to the contrary, in no event will a Payment
Blockage Period extend beyond 180 days from the date the Payment Blockage Notice
is delivered and only one such Payment Blockage Period may be commenced within
any 360 consecutive days. No event of default which existed or was continuing on
the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness shall be, or be made, the basis for commencement
of a second Payment Blockage Period by the Representative of such Designated
Senior Indebtedness whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action,
or any breach of any financial covenants for a period commencing after the date
of commencement of such Payment Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
SECTION 12.3 Subrogation.
Upon the payment in full in cash or Cash Equivalents of all Senior
Indebtedness of Holdings or a Guarantor, or provision for payment, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of Holdings or such Guarantor, as the case may be, made on such
Senior Indebtedness until the principal of and interest on the Securities shall
be paid in full in cash or Cash Equivalents; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee on their behalf would be entitled except for the
provisions of this Article Twelve, and no payment over pursuant to the
provisions of this Article Twelve to the holders of such Senior Indebtedness by
Holders of the Securities or the
Trustee on their behalf shall, as between Holdings or such Guarantor, its
creditors other than holders of such Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment by Holdings or such Guarantor, as the case
may be, to or on account of such Senior Indebtedness. It is understood that the
provisions of this Article Twelve are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness of Holdings or each Guarantor, as the
case may be, on the other hand.
If any payment or distribution to which the Holders of the Securities would
otherwise have been entitled but for the provisions of this Article Twelve shall
have been applied, pursuant to the provisions of this Article Twelve, to the
payment of all amounts payable under Senior Indebtedness of Holdings or a
Guarantor, then and in such case, the Holders of the Securities shall be
entitled to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount required to make payment in full in cash of such Senior Indebtedness.
SECTION 12.4 Obligations of Guarantors Unconditional.
Subject to Sections 11.03 and 8.02, nothing contained in this Article
Twelve or elsewhere in this Indenture or in the Securities or the Holdings
Guarantee or the Guarantees is intended to or shall impair, as among Holdings
and each of the Guarantors and the Holders of the Securities, the obligation of
Holdings and each Guarantor, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with the terms of the
Holdings Guarantee or the Guarantee of such Guarantor, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of any Holdings or Guarantor other than the holders of Senior Indebtedness of
Holdings or such Guarantor, as the case may be, nor shall anything herein or
therein prevent the Holder of any Security or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Senior Indebtedness in respect of cash, property or securities of
Holdings or any Guarantor received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in this
Article Twelve shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Indebtedness of
Holdings or any Guarantor then due and payable shall first be paid in full in
cash or Cash Equivalents before the Holders of the Securities or the Trustee are
entitled to receive any direct or indirect payment from Holdings or such
Guarantor, as the case may be, of principal of
or interest on the Securities pursuant to the Holdings Guarantee or the
Guarantee, as the case may be.
SECTION 12.5 Notice to Trustee.
The Issuers shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
Twelve. The Trustee shall not be charged with knowledge of the existence of any
event of default with respect to any Senior Indebtedness of Holdings or a
Guarantor or of any other facts which would prohibit the making of any payment
to or by the Trustee unless and until the Trustee shall have received notice in
writing at its Corporate Trust Office to that effect signed by an Officer of an
Issuer, or by a holder of Senior Indebtedness of Holdings or a Guarantor or
trustee or agent therefor; and prior to the receipt of any such written notice,
the Trustee shall, subject to Article Seven, be entitled to assume that no such
facts exist. Nothing contained in this Section 12.05 shall limit the right of
the holders of Senior Indebtedness of Holdings or a Guarantor to recover
payments as contemplated by Section 12.03. The Trustee shall be entitled to rely
on the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Senior Indebtedness of Holdings or a Guarantor (or
a trustee on behalf of, or other representative of, such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of Holdings or a Guarantor to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Twelve, 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.
SECTION 12.6 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of Holdings or a
Guarantor referred to in this Article Twelve, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Indebtedness of Holdings or of such
Guarantor and other indebtedness of Holdings or such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.7 Trustee's Relation to Guarantor Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Twelve with respect to any Senior Indebtedness of Holdings
or a Guarantor which may at any time be held by them in their individual or any
other capacity to the same extent as any other holder of Senior Indebtedness of
Holdings or a Guarantor, and nothing in this Indenture shall deprive the Trustee
or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of Holdings or a
Guarantor, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Twelve,
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of Holdings or a Guarantor (except as provided in Section
12.02(b)). The Trustee shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Issuers or to any other person cash, property or securities to which
any holders of Guarantor Senior Indebtedness shall be entitled by virtue of this
Article Twelve or otherwise.
SECTION 12.8 Subordination Rights Not Impaired by Acts or Omissions of Holdings,
the Guarantors or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness of
Holdings or a Guarantor to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of Holdings or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by Holdings or any Guarantor
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with. The provisions of this
Article Twelve are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness of Holdings or a Guarantor.
SECTION 12.9 Securityholders Authorize Trustee To Effectuate Subordination of
Guarantee.
Each Holder of Securities by his acceptance of such Securities authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate
to effectuate the subordination provided in this Article Twelve, and appoints
the Trustee his attorney-in-fact for such purposes, including, in the event of
any dissolution, winding-up, total liquidation or reorganization of Holdings or
any Guarantor (whether in bankruptcy, insolvency, receivership, reorganization
or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of Holdings or
such Guarantor, the filing of a claim for the unpaid balance of its or his
Securities in the form required in those proceedings.
SECTION 12.10 This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Twelve shall not be
construed as preventing the occurrence of an Event of Default.
SECTION 12.11 Trustee's Compensation Not Prejudiced.
Nothing in this Article Twelve shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 12.12 No Waiver of Guarantee Subordination Provisions.
Without in any way limiting the generality of Section 12.08, the holders of
Senior Indebtedness of Holdings or a Guarantor may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of such Senior Indebtedness, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness or any instrument evidencing the
same or any agreement under which such Senior Indebtedness is outstanding or
secured; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (c) release
any Person liable in any manner for the collection of such Senior Indebtedness;
and (d) exercise or refrain from exercising any rights against any Guarantor and
any other Person.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are required to
be a part of this Indenture, and shall, to the extent applicable, be governed by
such provisions. If any provision of this Indenture modifies any TIA provision
that may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
The provisions of TIA xx.xx. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 13.2 Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person, by facsimile and confirmed by overnight courier, or mailed
by first-class mail addressed as follows:
if to Xxxxxx Packaging Company, GPC Capital Corp. I or Xxxxxx Packaging
Holdings Company:
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Senior Managing Director
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 or (000) 000-0000
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 or (000) 000-0000
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Each party by notice to the others may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA ss. 310(b), TIA ss.
313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to him at his address
as set forth on the Security Register and shall be sufficiently given to him if
so mailed within the time prescribed. To the extent required by the TIA, any
notice or communication shall also be mailed to any Person described in TIA ss.
313(c).
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other person shall
have the protection of TIA ss. 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or
refrain from taking any action under this Indenture after the date hereof, the
Issuers shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 13.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.7 Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities, the Holdings Guarantee and each Guarantee without regard to
principles of conflicts of law.
SECTION 13.8 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of an Issuer,
Holdings or any Guarantor shall not have any liability for any obligations of an
Issuer, Holdings or any Guarantor under the Securities, the Holdings Guarantee,
any Guarantee or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. All obligations under this
Indenture, the Securities and the Holdings Guarantee shall be expressly
non-recourse to the partners of the Company (other than Holdings as expressly
provided herein) and the partners of Holdings in their capacities as such; the
partners (other than Holdings as expressly provided herein) shall not be liable
for any claim based on, in respect of or by reason of such obligations or their
creation or bear any costs or expenses in connection with this Indenture, the
issuance and sale of the Securities or any transactions contemplated hereby or
thereby, and each Securityholder by accepting a Security waives and releases any
such obligations and liability.
SECTION 13.9 Successors.
All agreements of a party to this Indenture contained in this Indenture
shall bind such party's successors. In the event of a transfer of all or
substantially all of the Company's assets and liabilities to CapCo I in
connection with an IPO Reorganization, CapCo I shall be deemed the successor to
the Company and the Company shall be discharged and released from all further
obligations under this Indenture and the Securities subject to CapCo I's
compliance with Section 5.01(a)(ii) above.
SECTION 13.10 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.11 Severability.
In case any provision in this Indenture, in the Securities or in the
Holdings Guarantee or a Guarantee shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby, and a Holder shall have no claim
therefor against any party hereto.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.13 Legal Holidays.
If a payment date is a not a Business Day at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no interest
shall accrue for the intervening period.
[Signature Pages Follow]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
XXXXXX PACKAGING COMPANY
By: GPC OPCO GP LLC,
its General Partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance
and Administration,
Treasurer and Secretary
XXXXXX CAPITAL CORP. I
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Secretary
and Assistant Treasurer
XXXXXX PACKAGING HOLDINGS
COMPANY
By: BCP/Xxxxxx Holdings L.L.C.,
its General Partner
By: /s/ Frank Nico
-----------------------------------
Name: Frank Nico
Title: Assistant Treasurer and
Assistant Secretary
UNITED STATES TRUST COMPANY OF
NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
EXHIBIT A-1
[FORM OF SERIES A FIXED RATE SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES 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 AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A 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
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO AN ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (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 THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE ISSUER AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-1-1
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
8 3/4% Senior Subordinated Note
due 2008, Series A
CUSIP No.:[____]
No. [_________] $[_______]
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company",
which term includes any successor), and GPC CAPITAL CORP. I, a Delaware
corporation ("CapCo I", which term includes any successor, and, together with
the Company, the "Issuers"), for value received jointly and severally promise to
pay to [ ] or registered assigns, the principal sum of [ ] Dollars, on January
15, 2008.
Interest Payment Dates: January 15 and July 15, commencing on July 15,
1998.
Interest Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, each Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX PACKAGING COMPANY
By: GPC Opco GP LLC,
its general partner
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
-----------------------------------
Name:
Title:
A-1-2
By:
------------------------------------
Name:
Title:
Dated: [__________]
A-1-3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 8 3/4% Senior Subordinated Notes due 2008, Series A,
described in the within-mentioned Indenture.
Dated: [__________]
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee
By:
-------------------------------------
Authorized Signatory
A-1-4
(REVERSE OF SECURITY)
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
8 3/4% Senior Subordinated Note
due 2008, Series A
1. Interest.
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the
"Company"), and GPC CAPITAL CORP. I, a Delaware corporation ("Cap Co. I" and,
together with the Company, the "Issuers"), jointly and severally promise to pay
interest on the principal amount of this Security at the rate per annum shown
above. Cash 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 February 2,
1998. The Issuers will pay interest semi-annually in arrears on each Interest
Payment Date, commencing July 15, 1998. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
In addition, the Issuers shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful from time to time on demand, in each case at the
rate borne by this Security.
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Issuers shall 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 ("U.S. Legal Tender"). However,
the Issuers may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Issuers may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the "Trustee") will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice to the Holders. The Issuers may, subject to certain
exceptions, act as Registrar.
4. Indenture and Guarantees.
The Issuers issued the Securities under an Indenture, dated as of February
2, 1998
A-1-5
(the "Indenture"), by and among the Issuers, Xxxxxx Packaging Holdings
Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Issuers designated as their 8 3/4% Senior
Subordinated Notes due 2008, Series A, issued under the Indenture The aggregate
principal amount of Securities which may be issued under the Indenture is
limited (except as otherwise provided in the Indenture) to $325,000,000. 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, as
amended (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture (except as otherwise indicated in the Indenture) until such time
as the Indenture is qualified under the TIA, and thereafter as in effect on the
date on which the Indenture is qualified under the TIA. Notwithstanding anything
to the contrary herein, the Securities are subject to all such terms, and
holders of Securities are referred to the Indenture and the TIA for a statement
of them. The Securities are unsecured obligations of the Issuers. The Securities
are subordinated in right of payment to all Senior Indebtedness of the Issuers
to the extent and in the manner provided in the Indenture. Each Holder of a
Security, by accepting a Security, agrees to such subordination, authorizes the
Trustee to give effect to such subordination and appoints the Trustee as
attorney-in-fact for such purpose. Nothing contained in the Indenture or in any
Securities or Holdings Guarantee shall require Holdings to preserve its
existence, and Holdings may be dissolved at any time (whether in connection with
a Holdings IPO Reorganization or otherwise). The Securities will rank pari passu
in right of payment with any future senior subordinated indebtedness of the
Issuers and will rank senior in right of payment to any other subordinated
obligations of the Issuers.
5. Optional Redemption.
The Fixed Rate Securities will be redeemable at the option of the Issuers,
in whole or in part, at any time on or after January 15, 2003, at the redemption
prices (expressed as a percentage of principal amount) set forth below, plus
accrued and unpaid interest thereon, 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), if redeemed during the twelve-month
period beginning on January 15, of the years indicated below:
Redemption
Year Price
---- ----------
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000%
6. Optional Redemption upon Equity Offerings.
In addition, at any time and from time to time on or prior to January 15,
2001, the Issuers may, at their option, use the net cash proceeds of one or more
Equity Offerings by the Company (or by Holdings to the extent such proceeds are
contributed to the Company) to redeem up to 40% of the aggregate principal
amount of the Fixed Rate Securities originally issued at a redemption price in
cash equal to 108.750% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption (subject to the right of
Holders of record
A-1-6
on the relevant record date to receive interest due on the relevant interest
payment date); provided, however, that at least 60% of the aggregate principal
amount of the Fixed Rate Securities originally issued must remain outstanding
immediately after giving effect to each such redemption (excluding any Fixed
Rate Securities held by an Issuer or any of its Affiliates). In order to effect
the foregoing redemption with the proceeds of any Equity Offering, the Issuers
shall make such redemption not more than 120 days after the consummation of any
such Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Issuers have deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
8. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall, within 30
days after the Change of Control Date, make an Offer to Purchase all Securities
then outstanding at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date).
9. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make an Offer
to Purchase Securities at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the Interest Relevant Record Date
to receive interest due on the relevant Interest Payment Date) with the excess
proceeds of certain asset dispositions.
B-1-6
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
or exchange of Securities
A-1-7
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in
part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Issuers at
their written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the Indenture
and the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture
and the Securities, in each case upon satisfaction of certain conditions
specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments by Restricted Subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its assets or
to engage in transactions with affiliates or certain other related persons. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must report quarterly to the Trustee on compliance with such
limitations.
A-1-8
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Issuers, Holdings or any Guarantor shall have any liability for any
obligation of the Issuers, Holdings or any Guarantor under the Securities, the
Holdings Guarantee, the Guarantee of such Guarantor or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities. All obligations under the Indenture, the Initial
Securities, the Private Exchange Securities, the Unrestricted Securities and the
Holdings Guarantee (which term includes Holdings' guarantee of the obligations
of the Issuers under the Indenture, the Initial Securities, the Private Exchange
Securities and the Unrestricted Securities) shall be expressly non-recourse to
the partners of Holdings in their capacities as such, and by purchasing the
Securities, each holder of Securities waives any such liability of any partner
of Holdings under the Indenture, the Initial Securities, the Private Exchange
Securities, the Unrestricted Securities and the Holdings Guarantee. The partners
of Holdings shall not be liable for any claim based on, in respect of or by
reason of such obligations or their creation or bear any costs or expenses in
connection with the Indenture, the Initial Securities, the Private Exchange
Securities, the Unrestricted Securities or the Holdings Guarantee or any
transaction contemplated thereby.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or
A-1-9
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Registration Rights.
Pursuant to the Registration Rights Agreement, the Issuers will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for an 8 3/4% Senior Subordinated Note due 2008, Series B, of the
Issuers which has been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to the Initial Fixed
Rate Securities. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
23. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security, the Holdings Guarantee and any Guarantee without regard to principles
of conflicts of laws.
24. One Class of Securities.
The Fixed Rate Securities and the Floating Rate Securities are treated as
one class of securities under the Indenture.
A-1-10
[FORM OF HOLDINGS GUARANTEE/GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
[Holdings] [The Guarantor] (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby unconditionally guarantees
on a senior subordinated basis (such guaranty being referred to herein as the
"[Holdings] Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of [Holdings] [the Guarantor] to the Holders of Securities
and to the Trustee pursuant to the [Holdings] Guarantee and the Indenture are
expressly set forth, and are expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of [Holdings] [such Guarantor], to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of the [Holdings] Guarantee
therein made.
This Holdings Guarantee will rank pari passu in right of payment with any
future senior subordinated indebtedness of Holdings and will rank senior in
right of payment to any other future subordinated obligations of Holdings.
This [Holdings] Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which this
[Holdings] Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
Nothing contained in the Indenture or in any Securities or Holdings
Guarantee shall require Holdings to preserve its existence, and Holdings may be
dissolved at any time (whether in connection with a Holdings IPO Reorganization
or otherwise).
All obligations under [this Holdings Guarantee and under] the Indenture,
the Initial Securities, the Private Exchange Securities and the Unrestricted
Securities shall be expressly non-recourse to the partners of Holdings in their
capacities as such, and by purchasing the Securities guaranteed hereby, each
holder of Securities waives any such liability of any partner of Holdings under
the Indenture, the Initial Securities, the Private Exchange Securities, the
Unrestricted Securities or the Holdings Guarantee. The partners of Holdings
shall not be liable for any claim based on, in respect of or by reason of such
obligations or their creation or bear any costs or expenses in connection with
this Holdings Guarantee or the Indenture, the Initial securities, the Private
Exchange Securities or the Unrestricted Securities or any transaction
contemplated thereby. Nothing contained in the Indenture or in any Securities or
Holdings Guarantee shall require Holdings to preserve its existence, and
Holdings may be dissolved at any time (whether in connection with a Holdings IPO
Reorganization or otherwise).
This [Holdings] Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This [Holdings] Guarantee is subject to release upon the terms set forth in
the Indenture.
By:
----------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to transfer this Security on the books of the
Issuers. The agent may substitute another to act for him.
Dated: Signed:
-------------- -------------------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated: Your Signature:
------------------- ----------------------------------
Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT A-2
[FORM OF SERIES A FLOATING RATE SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES 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 AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A 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
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO AN ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (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 THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE ISSUER AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-2-1
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
FLOATING INTEREST RATE SUBORDINATED TERM SECURITIES (FIRSTSSM1) due 2008
CUSIP No.:[___]
No. [_________] $[___]
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company",
which term includes any successor), and GPC CAPITAL CORP. I, a Delaware
corporation ("CapCo I", which term includes any successor, and, together with
the Company, the "Issuers"), for value received jointly and severally promise to
pay to [_______] or registered assigns, the principal sum of [_______] Dollars,
on January 15, 2008.
Interest Payment Dates: January 15 and July 15, commencing on July 15,
1998.
Interest Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, each Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX PACKAGING COMPANY
By: GPC Opco GP LLC,
its general partner
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
A-2-2
Name:
Title:
Dated: [___________]
(1) FIRSTS is a service xxxx of BT Alex. Xxxxx Incorporated.
A-2-3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Floating Interest Rate Subordinated Term Securities due
2008, Series A, described in the within-mentioned Indenture.
Dated: [___________]
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
A-2-4
(REVERSE OF SECURITY)
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
Floating Interest Rate Subordinated Term Security
due 2008 Series A
1. Interest.
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company"),
and GPC CAPITAL CORP. I, a Delaware corporation ("Cap Co. I" and, together with
the Company, the "Issuers"), jointly and severally promise to pay interest on
the principal amount of this Security at the rate per annum, reset
semi-annually, equal to LIBOR (as defined below) plus 3.625%, as determined by
the Calculation Agent. Interest on this Security will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from February 2, 1998. The Issuers will pay interest semi-annually on each
January 15 and July 15 (each, an "Interest Payment Date"), commencing July 15,
1998, for the period commencing on and including an Interest Payment Date and
ending on and including the day immediately preceding the next succeeding
Interest Payment Date (an "Interest Period"), with the exception that the first
Interest Period shall commence on and include February 2, 1998 and end on and
include July 14, 1998, and at stated maturity.
The Issuers shall pay interest on overdue principal and on overdue
installments of interest at the rate borne by this Security and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
"LIBOR," with respect to an Interest Period, shall be the rate (expressed
as a percentage per annum) for deposits in United States dollars for a six-month
period beginning on the second London Banking Day (as defined) after the
Determination Date (as defined) that appears on the Telerate Page 3750 ( (as
defined) as of 11:00 a.m., London time, on the Determination Date. If Telerate
Page 3750 does not include such a rate or is unavailable on a Determination
Date, LIBOR for the Interest Period shall be the arithmetic mean of the rates
(expressed as a percentage per annum) for deposits in a Representative Amount
(as defined) in United States dollars for a six-month period beginning on the
second London Banking Day after the Determination Date that appears on Reuters
Screen LIBO Page (as defined) as of 11:00 a.m., London time, on the
Determination Date. If Reuters Screen LIBO Page does not include two or more
rates or is unavailable on a Determination Date, the Calculation Agent will
request the principal London office of each of four major banks in the London
interbank market, as selected by the Calculation Agent, to provide such bank's
offered quotation (expressed as a percentage per annum), as of approximately
11:00 a.m., London time, on such Determination Date, to prime banks in the
London interbank market for deposits in a Representative Amount in United States
dollars for a six-month period beginning on the second London Banking Day after
the Determination Date. If at least two such offered quotations are so provided,
LIBOR for the Interest Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, the Calculation Agent will
request each of three major banks in New York City, as selected by the
Calculation Agent, to provide such bank's rate (expressed as a percentage per
A-2-5
annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a six-month period beginning on the second
London Banking Day after the Determination Date. If at least two such rates are
so provided, LIBOR for the Interest Period will be the arithmetic mean of such
rates. If fewer than two such rates are so provided, then LIBOR for the Interest
Period will be LIBOR in effect with respect to the immediately preceding
Interest Period.
"Determination Date," with respect to an Interest Period, will be the
second London Banking Day preceding the first day of the Interest Period.
"London Banking Day" is any day in which dealings in United States dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Representative Amount" means a principal amount of not less than U.S.
$1,000,000 for a single transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as "Page 3750" on the Dow
Xxxxx Telerate Service (or such other page as may replace Page 3750 on that
service).
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
The Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service).
The amount of interest for each day that this Security is outstanding (the
"Daily Interest Amount") will be calculated by dividing the interest rate in
effect for such day by 360 and multiplying the result by the principal amount of
this Security. The amount of interest to be paid on this Security for each
Interest Period will be calculated by adding the Daily Interest Amounts for each
day in the Interest Period.
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all dollar
amounts used in or resulting from such calculations will be rounded to the
nearest cent (with one-half cent being rounded upwards).
The interest rate on this Security will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application. Under current New York law, the maximum rate
of interest is 25% per annum on a simple interest basis. This limit may not
apply to Securities in which $2,500,000 or more has been invested.
The Calculation Agent will, upon the request of the Holder of any Floating
Rate Security, provide the interest rate then in effect with respect to this
Security. All calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes and binding on the Company
and the Holders of this Security.
A-2-6
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Issuers shall 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 ("U.S. Legal Tender"). However,
the Issuers may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Issuers may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the "Trustee") will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice to the Holders. The Issuers may, subject to certain
exceptions, act as Registrar.
4. Indenture and Guarantees.
The Issuers issued the Securities under an Indenture, dated as of February
2, 1998 (the "Indenture"), by and among the Issuers, Xxxxxx Packaging Holdings
Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Issuers designated as their Floating
Interest Rate Subordinated Term Securities due 2008, Series A, issued under the
Indenture. The aggregate principal amount of Securities which may be issued
under the Indenture is limited (except as otherwise provided in the Indenture)
to $325,000,000. 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, as amended (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture (except as otherwise indicated in the
Indenture) until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and holders of Securities are referred to the
Indenture and the TIA for a statement of them. The Securities are unsecured
obligations of the Issuers. The Securities are subordinated in right of payment
to all Senior Indebtedness of the Issuers to the extent and in the manner
provided in the Indenture. Each Holder of a Security, by accepting a Security,
agrees to such subordination, authorizes the Trustee to give effect to such
subordination and appoints the Trustee as attorney-in-fact for such purpose.
Nothing contained in the Indenture or in any Securities or Holdings Guarantee
shall require Holdings to preserve its existence, and Holdings may be dissolved
at any time (whether in connection with a Holdings IPO Reorganization or
otherwise). The Securities will rank pari passu in right of payment with any
future senior subordinated indebtedness of the Issuers and will rank senior in
right of payment to any other subordinated obligations of the Issuers.
5. Optional Redemption.
A-2-7
The Floating Rate Securities will be redeemable, at the Issuers' option, in
whole at any time or in part from time to time, upon not less than 30 nor more
than 60 days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on January 15 of the year set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the date of redemption:
Year Percentages
---- -----------
1998 105.000%
1999 104.000%
2000 103.000%
2001 102.000%
2002 101.000%
2003 and thereafter 100.000%
6. [Intentionally Omitted].
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Issuers have deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
8. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall, within 30
days after the Change of Control Date, make an Offer to Purchase all Securities
then outstanding at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date).
9. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make an Offer
to Purchase Securities at a purchase price equal to 100% of the principal amount
thereof, plus
A-2-8
accrued and unpaid interest thereon, if any, to the Purchase Date (subject to
the right of Holders of record on the Interest Relevant Record Date to receive
interest due on the relevant Interest Payment Date) with the excess proceeds of
certain asset dispositions.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
or exchange of Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange of any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Issuers at
their written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the Indenture
and the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
A-2-9
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments by Restricted Subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its assets or
to engage in transactions with affiliates or certain other related persons. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must report quarterly to the Trustee on compliance with such
limitations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Issuers, Holdings or any Guarantor shall have any liability for any
obligation of the Issuers, Holdings or any Guarantor under the Securities, the
Holdings Guarantee, the Guarantee of such Guarantor or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities. All obligat ons under the Indenture, the Initial
Securities, the Private Exchange Securities, the Unrestricted Securities and the
Holdings Guarantee (which term includes Holdings' guarantee of the obligations
of the Issuers under the Indenture, the Initial Securities, the Private Exchange
Securities and the Unrestricted Securities) shall be expressly non-recourse to
the partners of Holdings in their capacities as such, and by purchasing the
Securities, each holder of Securities waives any such liability of any partner
of Holdings under the Indenture, the Initial Securities, the Private Exchange
Securities, the Unrestricted Securities and the Holdings Guarantee. The partners
of Holdings shall not be liable for any claim based on, in respect of or by
reason of such obligations or their creation or bear any costs or expenses in
connection with the Indenture, the Initial Securities, the Private Exchange
Securities, the Unrestricted Securities or the Holdings Guarantee or any
transaction contemplated thereby.
A-2-10
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Registration Rights.
Pursuant to the Registration Rights Agreement, the Issuers will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for a Floating Interest Rate Subordinated Term Security due 2008,
Series B, of the Issuers which has been registered under the Securities Act, in
like principal amount and having terms identical in all material respects to the
Initial Floating Rate Securities. The Holders shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.
23. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security, the Holdings Guarantee and any Guarantee without regard to principles
of conflicts of laws.
24. One Class of Securities.
The Fixed Rate Securities and the Floating Rate Securities are treated as
one class of securities under the Indenture.
A-2-11
[FORM OF HOLDINGS GUARANTEE/GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
[Holdings] [The Guarantor] (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby unconditionally guarantees
on a senior subordinated basis (such guaranty being referred to herein as the
"[Holdings] Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of [Holdings] [the Guarantor] to the Holders of Securities
and to the Trustee pursuant to the [Holdings] Guarantee and the Indenture are
expressly set forth, and are expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of [Holdings] [such Guarantor], to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of the [Holdings] Guarantee
therein made. This Holdings Guarantee will rank pari passu in right of payment
with any future senior subordinated indebtedness of Holdings and will rank
senior in right of payment to any other future subordinated obligations of
Holdings.
This [Holdings] Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which this
[Holdings] Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
Nothing contained in the Indenture or in any Securities or Holdings
Guarantee shall require Holdings to preserve its existence, and Holdings may be
dissolved at any time (whether in connection with a Holdings IPO Reorganization
or otherwise).
All obligations under [this Holdings Guarantee and under] the Indenture,
the Initial Securities, the Private Exchange Securities and the Unrestricted
Securities shall be expressly non-recourse to the partners of Holdings in their
capacities as such, and by purchasing the Securities guaranteed hereby, each
holder of Securities waives any such liability of any partner of Holdings under
the Indenture, the Initial Securities, the Private Exchange Securities, the
Unrestricted Securities or the Holdings Guarantee. The partners of Holdings
shall not be liable for any claim based on, in respect of or by reason of such
obligations or their creation or bear any costs or expenses in connection with
this Holdings Guarantee or the Indenture, the Initial Securities, the Private
Exchange Securities or the Unrestricted Securities or any transaction
contemplated thereby. Nothing contained in the Indenture or in any Securities or
Holdings Guarantee shall require Holdings to preserve its existence, and
Holdings may be dissolved at any time (whether in connection with a Holdings IPO
Reorganization or otherwise).
This [Holdings] Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
A-2-12
This [Holdings] Guarantee is subject to release upon the terms set forth in
the Indenture.
[ ]
By:
-----------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to transfer this Security on the books of the
Issuers. The agent may substitute another to act for him.
Dated: Signed:
-------------- -------------------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated: Your Signature:
------------------- ----------------------------------
Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B-1
[FORM OF SERIES B FIXED RATE SECURITY]
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
8 3/4% Senior Subordinated Note
due 2008, Series B
CUSIP No.:[ ]
No. [ ] $[ ]
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company",
which term includes any successor), and GPC CAPITAL CORP. I, a Delaware
corporation ("CapCo I", which term includes any successor and, together with the
Company, the "Issuers"), for value received jointly and severally promise to pay
to [ ] or registered assigns, the principal sum of [ ] Dollars, on January 15,
2008.
Interest Payment Dates: January 15 and July 15, commencing on July 15,
1998.
Interest Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, each Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX PACKAGING COMPANY
By: GPC Opco GP LLC,
its general partner
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
B-1-1
GPC CAPITAL CORP. I
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Dated: [__________]
B-1-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 8 3/4% Senior Subordinated Notes due 2008, Series B,
described in the within-mentioned Indenture.
Dated: [__________]
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
-----------------------------------
Authorized Signatory
B-1-3
(REVERSE OF SECURITY)
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
8 3/4% Senior Subordinated Note
due 2008, Series B
1. Interest.
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company"),
and GPC CAPITAL CORP. I, a Delaware corporation ("Cap Co. I" and, together with
the Company, the "Issuers"), jointly and severally promise to pay interest on
the principal amount of this Security at the rate per annum shown above. Cash
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 February 2, 1998.
The Issuers will pay interest semi-annually in arrears on each Interest Payment
Date, commencing January 15, 1998. Interest will be computed on the basis of a
360- day year of twelve 30-day months.
In addition, the Issuers shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful from time to time on demand, in each case at the
rate borne by this Security.
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Issuers shall 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 ("U.S. Legal Tender"). However,
the Issuers may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Issuers may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the "Trustee") will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice to the Holders. The Issuers may, subject to certain
exceptions, act as Registrar.
B-1-4
4. Indenture and Guarantees.
The Issuers issued the Securities under an Indenture, dated as of February
2, 1998 (the "Indenture"), by and among the Issuers, Xxxxxx Packaging Holdings
Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Issuers designated as their 8 3/4% Senior
Subordinated Notes due 2008, Series B, under the Indenture. The aggregate
principal amount of Securities which may be issued under the Indenture is
limited (except as provided in the Indenture) to $325,000,000. 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, as amended (15 U.S.C.
xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture
(except as otherwise indicated in the Indenture) until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and holders of
Securities are referred to the Indenture and the TIA for a statement of them.
The Securities are unsecured obligations of the Issuers. The Securities are
subordinated in right of payment to all Senior Indebtedness of the Issuers to
the extent and in the manner provided in the Indenture. Each Holder of a
Security, by accepting a Security, agrees to such subordination, authorizes the
Trustee to give effect to such subordination and appoints the Trustee as
attorney-in-fact for such purpose. Nothing contained in the Indenture or in any
Securities or Holdings Guarantee shall require Holdings to preserve its
existence, and Holdings may be dissolved at any time (whether in connection with
a Holdings IPO Reorganization or otherwise). The Securities will rank pari passu
in right of payment with any future senior subordinated indebtedness of the
Issuers and will rank senior in right of payment to any other subordinated
obligations of the Issuers.
5. Optional Redemption.
The Fixed Rate Securities will be redeemable at the option of the Issuers,
in whole or in part, at any time on or after January 15, 2003, at the redemption
prices (expressed as a percentage of principal amount) set forth below, plus
accrued and unpaid interest thereon, 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), if redeemed during the twelve-month
period beginning on January 15, of the years indicated below:
Redemption
Year Price
---- -----------
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000%
6. Optional Redemption upon Equity Offerings.
In addition, at any time and from time to time on or prior to January 15,
2001, the Issuers may, at their option, use the net cash proceeds of one or more
Equity Offerings by the Company (or by Holdings to the extent such proceeds are
contributed to the Company) to redeem up to 40% of the aggregate principal
amount of the Fixed Rate Securities originally issued at a redemption price in
cash equal to 8 3/4% of the principal amount thereof, plus accrued and unpaid
B-1-5
interest thereon, if any, to the date of redemption (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 60% of the
aggregate principal amount of the Fixed Rate Securities originally issued must
remain outstanding immediately after giving effect to each such redemption
(excluding any Fixed Rate Securities held by an Issuer or any of its
Affiliates). In order to effect the foregoing redemption with the proceeds of
any Equity Offering, the Issuers shall make such redemption not more than 120
days after the consummation of any such Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Issuers have deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
8. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall, within 30
days after the Change of Control Date, make an Offer to Purchase all Securities
then outstanding at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest *due on the relevant Interest Payment
Date).
9. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make an Offer
to Purchase Securities at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the Interest Relevant Record Date
to receive interest due on the relevant Interest Payment Date) with the excess
proceeds of certain asset dispositions.
B-1-6
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
or exchange of Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange of any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Issuers at
their written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the Indenture
and the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments
B-1-7
by Restricted Subsidiaries to the Company, to consolidate, merge or sell all or
substantially all of its assets or to engage in transactions with affiliates or
certain other related persons. The limitations are subject to a number of
important qualifications and exceptions. The Issuers must report quarterly to
the Trustee on compliance with such limitations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of certain continuing Defaults or Events of Default
if it determines that withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Issuers, Holdings or any Guarantor shall have any liability for any
obligation of the Issuers, Holdings or any Guarantor under the Securities, the
Holdings Guarantee, the Guarantee of such Guarantor or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities. All obligations under the Indenture, the Initial
Securities, the Private Exchange Securities, the Unrestricted Securities and the
Holdings Guarantee (which term includes Holdings' guarantee of the obligations
of the Issuers under the Indenture, the Initial Securities, the Private Exchange
Securities and the Unrestricted Securities) shall be expressly non-recourse to
the partners of Holdings in their capacities as such, and by purchasing the
Securities, each holder of Securities waives any such liability of any partner
of Holdings under the Indenture, the Initial Securities, the Private Exchange
Securities, the Unrestricted Securities and the Holdings Guarantee. The partners
of Holdings shall not be liable for any claim based on, in respect of or by
reason of such obligations or their creation or bear any costs or expenses in
connection with the Indenture, the Initial Securities, the Private Exchange
Securities, the Unrestricted Securities or the Holdings Guarantee or any
transaction contemplated thereby.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the
B-1-8
certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security, the Holdings Guarantee and any Guarantee without regard to principles
of conflicts of laws.
23. One Class of Securities.
The Fixed Rate Securities and the Floating Rate Securities are treated as
one class of securities under the Indenture.
B-1-9
[FORM OF HOLDINGS GUARANTEE/GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
[Holdings] [The Guarantor] (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby unconditionally guarantees
on a senior subordinated basis (such guaranty being referred to herein as the
"[Holdings] Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of [Holdings] [the Guarantor] to the Holders of Securities
and to the Trustee pursuant to the [Holdings] Guarantee and the Indenture are
expressly set forth, and are expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of [Holdings] [such Guarantor], to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of the [Holdings] Guarantee
therein made. This Holdings Guarantee will rank pari passu in right of payment
with any future senior subordinated indebtedness of Holdings and will rank
senior in right of payment to any other future subordinated obligations of
Holdings.
This [Holdings] Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which this
[Holdings] Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
All obligations under [this Holdings Guarantee and under] the Indenture,
the Initial Securities, the Private Exchange Securities and the Unrestricted
Securities shall be expressly non-recourse to the partners of Holdings in their
capacities as such, and by purchasing the Securities guaranteed hereby, each
holder of Securities waives any such liability of any partner of Holdings under
the Indenture, the Initial Securities, the Private Exchange Securities, the
Unrestricted Securities or the Holdings Guarantee. The partners of Holdings
shall not be liable for any claim based on, in respect of or by reason of such
obligations or their creation or bear any costs or expenses in connection with
this Holdings Guarantee or the Indenture, the Initial Securities, the Private
Exchange Securities or the Unrestricted Securities or any transaction
contemplated thereby. Nothing contained in the Indenture or in any Securities or
Holdings Guarantee shall require Holdings to preserve its existence, and
Holdings may be dissolved at any time (whether in connection with a Holdings IPO
Reorganization or otherwise).
This [Holdings] Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This [Holdings] Guarantee is subject to release upon the terms set forth in
the Indenture. [ ]
By:
------------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to transfer this Security on the books of the
Issuers. The agent may substitute another to act for him.
Dated: Signed:
-------------- -------------------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated: Your Signature:
------------------- ----------------------------------
Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B-2
[FORM OF SERIES B FLOATING RATE SECURITY]
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
FLOATING INTEREST RATE SUBORDINATED TERM SECURITIES (FIRSTSSM1)
due 2008, Series B
CUSIP No.:[____]
No. [_________] $[____]
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company",
which term includes any successor), and GPC CAPITAL CORP. I, a Delaware
corporation ("CapCo I", which term includes any successor and, together with the
Company, the "Issuers"), for value received jointly and severally promise to pay
to [_________] or registered assigns, the principal sum of [_________] Dollars,
on January 15, 2008.
Interest Payment Dates: January 15 and July 15, commencing on July 15,
1998.
Interest Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
--------------
(1) FIRSTS is a service xxxx of BT Xxxx. Xxxxx Incorporated
B-2-1
IN WITNESS WHEREOF, each Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX PACKAGING COMPANY
By: GPC Opco GP LLC,
its general partner
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Dated: [__________]
B-2-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Floating Interest Rate Subordinated Term Securities due
2008, Series B, described in the within-mentioned Indenture.
Dated: [_________]
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
------------------------------------
Authorized Signatory
B-2-3
(REVERSE OF SECURITY)
XXXXXX PACKAGING COMPANY
GPC CAPITAL CORP. I
Floating Interest Rate Subordinated Term Security
due January 15, 2008, Series B
1. Interest.
XXXXXX PACKAGING COMPANY, a Delaware limited partnership (the "Company"),
and GPC CAPITAL CORP. I, a Delaware corporation ("Cap Co. I" and, together with
the Company, the "Issuers"), jointly and severally promise to pay interest on
the principal amount of this Security at the rate per annum, reset
semi-annually, equal to LIBOR (as defined below) plus 3.625%, as determined by
the Calculation Agent. Interest on this Security will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from February 2, 1998. The Company will pay interest semi-annually on each
January 15 and July 15 (each, an "Interest Payment Date"), commencing July 15,
1998, for the period commencing on and including an Interest Payment Date and
ending on and including the day immediately preceding the next succeeding
Interest Payment Date (an "Interest Period"), with the exception that the first
Interest Period shall commence on and include February 2, 1998 and end on and
include July 14, 1998, and at stated maturity.
The Issuers shall pay interest on overdue principal and on overdue
installments of interest at the rate borne by this Security and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
"LIBOR," with respect to an Interest Period, shall be the rate (expressed
as a percentage per annum) for deposits in United States dollars for a six-month
period beginning on the second London Banking Day (as defined) after the
Determination Date (as defined) that appears on Telerate Page 3750 (as defined)
as of 11:00 a.m., London time, on the Determination Date. If Telerate Page 3750
does not include such a rate or is unavailable on a Determination Date, LIBOR
for the Interest Period shall be the arithmetic mean of the rates (expressed as
a percentage per annum) for deposits in a Representative Amount (as defined) in
United States dollars for a six-month period beginning on the second London
Banking Day after the Determination Date that appears on Reuters Screen LIBO
Page (as defined) as of 11:00 a.m., London time, on the Determination Date. If
Reuters Screen LIBO Page does not include two or more rates or is unavailable on
a Determination Date, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank market, as selected
by the Calculation Agent, to provide such bank's offered quotation (expressed as
a percentage per annum), as of approximately 11:00 a.m., London time, on such
Determination Date, to prime banks in the London interbank market for deposits
in a Representative Amount in United States dollars for a six-month period
beginning on the second London Banking Day after the Determination Date. If at
least two such offered quotations are so provided, LIBOR for the Interest Period
will be the arithmetic mean of such
B-2-4
quotations. If fewer than two such quotations are so provided, the Calculation
Agent will request each of three major banks in New York City, as selected by
the Calculation Agent, to provide such bank's rate (expressed as a percentage
per annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a six-month period beginning on the second
London Banking Day after the Determination Date. If at least two such rates are
so provided, LIBOR for the Interest Period will be the arithmetic mean of such
rates. If fewer than two such rates are so provided, then LIBOR for the Interest
Period will be LIBOR in effect with respect to the immediately preceding
Interest Period.
"Determination Date," with respect to an Interest Period, will be the
second London Banking Day preceding the first day of the Interest Period.
"London Banking Day" is any day in which dealings in United States dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Representative Amount" means a principal amount of not less than U.S.
$1,000,000 for a single transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as "Page 3750" on the Dow
Xxxxx Telerate Service (or such other page as may replace Page 3750 on that
service).
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service).
The amount of interest for each day that this Security is outstanding (the
"Daily Interest Amount") will be calculated by dividing the interest rate in
effect for such day by 360 and multiplying the result by the principal amount of
this Security. The amount of interest to be paid on this Security for each
Interest period will be calculated by adding the Daily Interest Amounts for each
day in the Interest Period.
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all dollar
amounts used in or resulting from such calculations will be rounded to the
nearest cent (with one-half cent being rounded upwards).
The interest rate on this Security will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application. Under current New York law, the maximum rate
of interest is 25% per annum on a simple interest basis. This limit may not
apply to Securities in which $2,500,000 or more has been invested.
The Calculation Agent will, upon the request of the Holder of any Floating
Rate Security, provide the interest rate then in effect with respect to this
Security. All
B-2-5
calculations made by the Calculation Agent in the absence of manifest error
shall be conclusive for all purposes and binding on the Company and the
Holders of this Security.
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Issuers shall 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 ("U.S. Legal Tender"). However,
the Issuers may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Issuers may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the "Trustee") will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice to the Holders. The Issuers may, subject to certain
exceptions, act as Registrar.
4. Indenture and Guarantees.
The Issuers issued the Securities under an Indenture, dated as of February
2, 1998 (the "Indenture"), by and among the Issuers, Xxxxxx Packaging Holdings
Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Issuers designated as their Floating
Interest Rate Subordinated Term Securities due 2008, Series B, issued under the
Indenture. The aggregate principal amount of Securities which may be issued
under the Indenture is limited (except as otherwise provided in the Indenture)
to $325,000,000 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, as amended (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture (except as otherwise indicated in the
Indenture) until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and holders of Securities are referred to the
Indenture and the TIA for a statement of them. The Securities are unsecured
obligations of the Issuers. The Securities are subordinated in right of payment
to all Senior Indebtedness of the Issuers to the extent and in the manner
provided in the Indenture. Each Holder of a Security, by accepting a Security,
agrees to such subordination, authorizes the Trustee to give effect to such
subordination and appoints the Trustee as attorney-in-fact for such purpose.
Nothing contained in the Indenture or in any Securities or Holdings Guarantee
shall require Holdings to preserve its existence, and Holdings may be dissolved
at any time (whether in connection with a Holdings IPO Reorganization or
otherwise). The Securities will rank pari passu in right of payment with
B-2-6
any future senior subordinated indebtedness of the Issuers and will rank
senior in right of payment to any other subordinated obligations of the Issuers.
5. Optional Redemption.
The Floating Rate Securities will be redeemable, at the Issuers' option, in
whole at any time or in part from time to time, upon not less than 30 nor more
than 60 days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on January 15 of the year set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
1998 105.000%
1999 104.000%
2000 103.000%
2001 102.000%
2002 101.000%
2003 and thereafter 100.000%
6. [Intentionally Omitted]
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Issuers have deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
8. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall, within 30
days after the Change of Control Date, make an Offer to Purchase all Securities
then outstanding at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date).
B-2-7
9. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make an Offer
to Purchase Securities at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the Interest Relevant Record Date
to receive interest due on the relevant Interest Payment Date) with the excess
proceeds of certain asset dispositions.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
or exchange of Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange of any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Issuers at
their written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the Indenture
and the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for
B-2-8
uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments by Restricted Subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its assets or
to engage in transactions with affiliates or certain other related persons. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must report quarterly to the Trustee on compliance with such
limitations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Issuers, Holdings or any Guarantor shall have any liability for any
obligation of the Issuers, Holdings or any Guarantor under the Securities, the
Holdings Guarantee, the Guarantee of such Guarantor or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities. All obligations under the Indenture, the Initial
Securities, the Private Exchange Securities, the Unrestricted Securities and the
Holdings Guarantee (which term includes Holdings' guarantee of the obligations
of the Issuers under the Indenture the Initial Securities, the Private Exchange
Securities and the Unrestricted Securities) shall be expressly non-recourse to
the partners of Holdings in their capacities as such, and by
B-2-9
purchasing the Securities, each holder of Securities waives any such liability
of any partner of Holdings under the Indenture, the Initial Securities, the
Private Exchange Securities, the Unrestricted Securities and the Holdings
Guarantee. The partners of Holdings shall not be liable for any claim based on,
in respect of or by reason of such obligations or their creation or bear any
costs or expenses in connection with the Indenture, the Initial Securities, the
Private Exchange Securities, the Unrestricted Securities or the Holdings
Guarantee or any transaction contemplated thereby.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security, the Holdings Guarantee and any Guarantee without regard to principles
of conflicts of laws.
23. One Class of Securities.
The Fixed Rate Securities and the Floating Rate Securities are treated as
one class of securities under the Indenture.
B-2-10
[FORM OF HOLDINGS GUARANTEE/GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
[Holdings] [The Guarantor] (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby unconditionally guarantees
on a senior subordinated basis (such guaranty being referred to herein as the
"[Holdings] Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of [Holdings] [the Guarantor] to the Holders of Securities
and to the Trustee pursuant to the [Holdings] Guarantee and the Indenture are
expressly set forth, and are expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of [Holdings] [such Guarantor], to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of the [Holdings] Guarantee
therein made.
This Holdings Guarantee will rank pari passu in right of payment with any
future senior subordinated indebtedness of Holdings and will rank senior in
right of payment to any other future subordinated obligations of Holdings.
This [Holdings] Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which this
[Holdings] Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
Nothing contained in the Indenture or in any Securities or Holdings
Guarantee all require Holdings to preserve its existence, and Holdings may be
dissolved at any time (whether in connection with a Holdings IPO Reorganization
or otherwise).
All obligations under [this Holdings Guarantee and under] the Indenture,
the Initial Securities, the Private Exchange Securities and the Unrestricted
Securities shall be expressly non-recourse to the partners of Holdings in their
capacities as such, and by purchasing the Securities guaranteed hereby, each
holder of Securities waives any such liability of any partner of Holdings under
the Indenture, the Initial Securities, the Private Exchange Securities, the
Unrestricted Securities or the Holdings Guarantee. The partners of Holdings
shall not be liable for any claim based on, in respect of or by reason of such
obligations or their creation or bear any costs or expenses in connection with
this Holdings Guarantee or the Indenture, the Initial Securities, the Private
Exchange Securities or the Unrestricted Securities or any transaction
contemplated thereby. Nothing contained in the Indenture or in any Securities or
Holdings Guarantee shall require Holdings to preserve its existence, and
Holdings may be dissolved at any time (whether in connection with a Holdings
IPO Reorganization or otherwise).
This [Holdings] Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This [Holdings] Guarantee is subject to release upon the terms set forth in
the Indenture.
By:
-----------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to transfer this Security on the books of the
Issuers. The agent may substitute another to act for him.
Dated: Signed:
-------------- -------------------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated: Your Signature:
------------------- ----------------------------------
Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 8 3/4% Senior Subordinated Notes due 2008
(the "Fixed Rate Securities") or Floating Interest
Rate Subordinated Term Securities due 2008
("Floating Rate Securities" and, together with
the Fixed Rate Securities, the "Securities") of
Xxxxxx Packaging Company and GPC Capital Corp. I
This Certificate relates to $_______ principal amount of [Fixed Rate
Securities] [Floating Rate Securities] held in the form of* ___ a beneficial
interest in a Global Security or* _______ Physical Securities by ______ (the
"Transferor").
The Transferor:*
has requested by written order that the Registrar deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Physical
Security or Physical Securities in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Security (or the portion thereof indicated above); or has requested the
Registrar by written order to exchange or register the transfer of a Physical
Security or Physical Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Securities does not require Registration under the Securities
Act of 1933, as amended (the "Act"), because*:
Such Security is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.16 of the Indenture).
Such Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Act), in reliance on Rule 144A.
Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
Exhibit E to the Indenture.
Such Security is being transferred in reliance on Rule 144 under the
D-1
Act.
/ / Such Security is being transferred in reliance on and in compliance with
an exemption from the Registration requirements of the Act other than Rule
144A or Rule 144 under the Act to a person other than an institutional
"accredited investor." [An Opinion of Counsel to the effect that such transfer
does not require Registration under the Securities Act accompanies this
certification.]
--------------------------------
[INSERT NAME OF TRANSFEROR]
By:
--------------------------
[Authorized Signatory]
Date: --------------
*Check applicable box.
D-2
EXHIBIT E
Form of Transferee Letter of Representation
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Dear Sirs:
This certificate is delivered to request a transfer of $________ principal
amount of the [8 3/4% Senior Subordinated Notes due 2008 ] [Floating Interest
Rate Subordinated Term Securities due 2008] (the "Notes") of Xxxxxx Packaging
Company and GPC Capital Corp. I (the "Issuers"). 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 (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 risk 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 which is two years
after the later of the date of original issue and the last date on which an
Issuer or any affiliate of an Issuer was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a)
to an Issuer, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) in a transaction complying
with the requirements of Rule 144A under the Securities Act, to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a
"QIB") that purchases
E-1
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)
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 (e) 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 resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (d)
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 Issuer 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 Issuer 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) or (e) above to require the
delivery of an opinion of counsel, certificates and/or other information
satisfactory to the Issuer and the Trustee.
Dated: TRANSFEREE:
------------------------ -----------------------------
By:
-------------------------------------
E-2
