EXHIBIT 4.1
--------------------------------------------------------------------------------
XXXXX PLASTICS CORPORATION
10 3/4 % Senior Subordinated Notes due 2012
INDENTURE
Dated as of July 22, 2002
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Other Definitions........................................... 20
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........... 21
SECTION 1.04. Rules of Construction....................................... 21
ARTICLE 2
THE NOTES
SECTION 2.01. Amount of Notes; Issuable in Series........................ 22
SECTION 2.02. Form and Dating............................................ 23
SECTION 2.03. Execution and Authentication............................... 23
SECTION 2.04. Registrar and Paying Agent................................. 23
SECTION 2.05. Paying Agent to Hold Money in Trust........................ 24
SECTION 2.06. Holder Lists............................................... 24
SECTION 2.07. Transfer and Exchange...................................... 25
SECTION 2.08. Replacement Notes.......................................... 25
SECTION 2.09. Outstanding Notes.......................................... 26
SECTION 2.10. Temporary Notes............................................ 26
SECTION 2.11. Cancelation................................................ 26
SECTION 2.12. Defaulted Interest......................................... 26
SECTION 2.13. CUSIP and ISIN Numbers..................................... 27
SECTION 2.14. Computation of Interest.................................... 27
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee......................................... 27
SECTION 3.02. Selection of Notes To Be Redeemed.......................... 27
SECTION 3.03. Notice of Redemption....................................... 27
SECTION 3.04. Effect of Notice of Redemption............................. 28
SECTION 3.05. Deposit of Redemption Price................................ 28
SECTION 3.06. Notes Redeemed in Part..................................... 29
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes........................................... 29
SECTION 4.02. SEC Reports................................................ 29
SECTION 4.03. Limitation of Indebtedness................................. 29
SECTION 4.04. Limitation on Restricted Payments.......................... 33
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.................................. 38
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock......... 40
SECTION 4.07. Limitation on Transactions with Affiliates................. 43
SECTION 4.08. Change of Control.......................................... 45
SECTION 4.09. Compliance Certificate..................................... 47
SECTION 4.10. Further Instruments and Acts............................... 47
SECTION 4.11. Future Note Guarantors and Release of Note Guarantors...... 47
SECTION 4.12. Trustee Has No Obligation to Monitor....................... 48
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. When Company May Merge or Transfer Assets.................. 48
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.......................................... 49
SECTION 6.02. Acceleration............................................... 51
SECTION 6.03. Other Remedies............................................. 52
SECTION 6.04. Waiver of Past Defaults.................................... 52
SECTION 6.05. Control by Majority........................................ 52
SECTION 6.06. Limitation on Suits........................................ 52
SECTION 6.07. Rights of Holders to Receive Payment....................... 53
SECTION 6.08. Collection Suit by Trustee................................. 53
SECTION 6.09. Trustee May File Proofs of Claim........................... 53
SECTION 6.10. Priorities................................................. 53
SECTION 6.11. Undertaking for Costs...................................... 54
SECTION 6.12. Waiver of Stay or Extension Laws........................... 54
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.......................................... 54
SECTION 7.02. Rights of Trustee.......................................... 55
SECTION 7.03. Individual Rights of Trustee............................... 56
SECTION 7.04. Trustee's Disclaimer....................................... 56
SECTION 7.05. Notice of Defaults......................................... 56
SECTION 7.06. Reports by Trustee to Holders.............................. 57
SECTION 7.07. Compensation and Indemnity................................. 57
SECTION 7.08. Replacement of Trustee..................................... 58
SECTION 7.09. Successor Trustee by Merger................................ 59
SECTION 7.10. Eligibility; Disqualification.............................. 59
SECTION 7.11. Preferential Collection of Claims Against Company.......... 59
ARTICLE 8
DISCHARGE OF INDENTURE, DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance................ 59
SECTION 8.02. Conditions to Defeasance................................... 60
SECTION 8.03. Application of Trust Money................................. 61
SECTION 8.04. Repayment to Company....................................... 62
SECTION 8.05. Indemnity for Government Obligations....................... 62
SECTION 8.06. Reinstatement.............................................. 62
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders................................. 62
SECTION 9.02. With Consent of Holders.................................... 63
SECTION 9.03. Compliance with Trust Indenture Act........................ 64
SECTION 9.04. Revocation and Effect of Consents and Waivers.............. 64
SECTION 9.05. Notation on or Exchange of Notes........................... 65
SECTION 9.06. Trustee to Sign Amendments................................. 65
SECTION 9.07. Payment for Consent........................................ 65
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate................................... 66
SECTION 10.02. Liquidation, Dissolution, Bankruptcy....................... 66
SECTION 10.03. Default on Senior Indebtedness............................. 66
SECTION 10.04. Acceleration of Payment of Notes........................... 68
SECTION 10.05. When Distribution Must Be Paid Over........................ 68
SECTION 10.06. Subrogation................................................ 68
SECTION 10.07. Relative Rights............................................ 68
SECTION 10.08. Subrogation May Not Be Impaired by Company................. 69
SECTION 10.09. Rights of Trustee and Payment Agent........................ 69
SECTION 10.10. Distribution or Notice to Representative................... 69
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit
Right to Accelerate...................................... 69
SECTION 10.12. Trust Monies Not Subordinated.............................. 69
SECTION 10.13. Trustee Entitled to Rely................................... 69
SECTION 10.14. Trustee to Effectuate Subordination........................ 70
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness............................................. 70
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions................................. 70
ARTICLE 11
NOTE GUARANTEES
SECTION 11.01. Note Guarantees............................................ 70
SECTION 11.02. Limitation on Liability.................................... 73
SECTION 11.03. Successors and Assigns..................................... 73
SECTION 11.04. No Waiver.................................................. 73
SECTION 11.05. Modification............................................... 73
SECTION 11.06. Execution of Supplemental Indenture for Future
Note Guarantors.......................................... 74
SECTION 11.07. Release of Note Guarantees................................. 74
SECTION 11.08. Non-Impairment............................................. 74
ARTICLE 12
SUBORDINATION OF THE NOTE GUARANTEES
SECTION 12.01. Agreement to Subordinate................................... 74
SECTION 12.02. Liquidation, Dissolution, Bankruptcy....................... 75
SECTION 12.03. Default on Designated Senior Indebtedness of a
Note Guarantor........................................... 75
SECTION 12.04. Demand for Payment......................................... 76
SECTION 12.05. When Distribution Must Be Paid Over........................ 77
SECTION 12.06. Subrogation................................................ 77
SECTION 12.07. Relative Rights............................................ 77
SECTION 12.08. Subordination May Not Be Impaired by a Note
Guarantor................................................ 77
SECTION 12.09. Rights of Trustee and Paying Agent......................... 77
SECTION 12.10. Distribution or Notice to Representative................... 78
SECTION 12.11. Article 12 Not To Prevent Events of Default or
Limit Right To Accelerate................................ 78
SECTION 12.12. Trustee Entitled to Rely................................... 78
SECTION 12.13. Trustee To Effectuate Subordination........................ 78
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Note Guarantor......................... 79
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Note Guarantor on Subordination Provisions............... 79
SECTION 12.16. Trust Monies Not Subordinated.............................. 79
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls............................... 79
SECTION 13.02. Notices.................................................... 80
SECTION 13.03. Communication by Holders with Other Holders................ 80
SECTION 13.04. Certificate and Opinion as to Conditions Precedent......... 81
SECTION 13.05. Statements Required in Certificate or Opinion.............. 81
SECTION 13.06. When Notes Disregarded..................................... 81
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar............... 81
SECTION 13.08. Legal Holidays............................................. 81
SECTION 13.09. Governing Law.............................................. 82
SECTION 13.10. No Recourse Against Others................................. 82
SECTION 13.11. Successors................................................. 82
SECTION 13.12. Multiple Originals......................................... 82
SECTION 13.13. Table of Contents; Headings................................ 82
Appendix A - Provisions Relating to Original Notes, Additional Notes and
Exchange Notes
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of July 22, 2002, among XXXXX PLASTICS
CORPORATION, a Delaware corporation (the "Company"), BPC HOLDING
CORPORATION, XXXXX IOWA CORPORATION, PACKERWARE CORPORATION,
KNIGHT PLASTICS, INC., XXXXX XXXXXXXX CORPORATION, XXXXX PLASTICS
DESIGN CORPORATION, POLY-SEAL CORPORATION, XXXXX PLASTICS
ACQUISITIONS CORPORATION III, VENTURE PACKAGING, INC., VENTURE
PACKAGING MIDWEST, INC., XXXXX PLASTICS TECHNICAL SERVICES, INC.,
CPI HOLDING CORPORATION, AEROCON, INC., PESCOR, INC., XXXXX TRI-
PLAS CORPORATION, each a Delaware corporation, and CARDINAL
PACKAGING, INC., an Ohio corporation. (collectively, the "Note
Guarantors") and U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (a) the Company's 10 3/4%
Senior Subordinated Notes due 2012 issued on the date hereof (the "Original
Notes"), (b) any Additional Notes (as defined herein) that may be issued on any
Issue Date (all such Notes in clauses (a) and (b) being referred to collectively
as the "Initial Notes") and (c) if and when issued as provided in a Registration
Rights Agreement (as defined in Appendix A hereto (the "Appendix")), the
Company's 10 3/4% Senior Subordinated Notes due 2012 issued in a Registered
Exchange Offer in exchange for any Initial Notes (the "Exchange Notes")
(together with the Initial Notes and any Exchange Notes issued hereunder, the
"Notes"). Notes in an aggregate principal amount of $250,000,000 will be
initially issued on the date hereof. Subject to the conditions and in compliance
with the covenants set forth herein, the Company may issue an unlimited
aggregate principal amount of Additional Notes from time to time.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquisition" means that transaction described as such in the
"Acquisition" section of the Offering Memorandum.
"Additional Assets" means: (a) any property or assets (other than
Indebtedness and Capital Stock) acquired or constructed to be used by the
Company or a Restricted Subsidiary; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary.
"Additional Interest" means any additional interest payable under a
Registration Rights Agreement.
"Additional Notes" means any Senior Subordinated Notes issued under
the terms of this Indenture subsequent to the Closing Date.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of Holding or the Company or of
rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease (other than an operating
lease entered into in the ordinary course of business), transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation, or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of: (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
2
Restricted Subsidiary, (ii) for purposes of Section 4.06 only, a disposition
subject to Section 4.04, (iii) a disposition of assets with a Fair Market Value
of less than $3.0 million, (iv) transactions permitted under Section 5.01, (v)
an issuance of Capital Stock by a Restricted Subsidiary of the Company to the
Company or to another Restricted Subsidiary, (vi) a sale of accounts receivable
and related assets pursuant to a Receivables Facility, (vii) the licensing or
sublicensing of intellectual property or other general intangibles to the extent
that such license does not prohibit the licensor from using the intellectual
property and licences, leases or subleases of other property in the ordinary
course of business, and (viii) any disposition in the ordinary course of
business of obsolete, worn-out, surplus or other property not useful in the
conduct of the business.
"Asset Swap" means the exchange by the Company or a Restricted
Subsidiary of a portion of its property, business or assets for property,
businesses, assets or Capital Stock of a Person (or any combination thereof, as
well as cash or cash equivalents), all or substantially all of the assets of
which, are of a type used in the business of the Company or of a Restricted
Subsidiary.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Notes, compounded annually) of the total obligations of the
lessee for rental payments (excluding, however, any amounts required to be paid
by such lessee, whether or not designated as rent or additional rent, on account
of maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales or similar contingent amounts) during the
remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means (a) any and all amounts payable under or in
respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement and indemnification obligations, guarantees and all
other amounts payable thereunder or in respect thereof and (b) any Hedging
Obligations of Holding, the Company or any of its Subsidiaries in favor of any
holder of Indebtedness under the Credit Agreement or any Refinancing
Indebtedness with respect thereto. It is understood and agreed that Refinancing
Indebtedness in respect of the Credit Agreement may be Incurred from time to
time after termination of the Credit Agreement.
3
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of the Board of Directors
of the Company or with respect to any other entity a similar meaning.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities including those convertible into such
equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Cash Equivalents" means: (a) United States dollars; (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition; (c) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
from the date of acquisition and overnight bank deposits, in each case, with any
lender party to the Credit Facility or with any domestic commercial bank having
capital and surplus in excess of $500.0 million; (d) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above; and (e)
commercial paper having the highest rating obtainable from Xxxxx'x Investors
Service, Inc. or Standard & Poor's Rating Services and in each case maturing
within six months after the date of acquisition.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power of the Voting
Stock of the Company or Holding, whether as a result of issuance of securities
of Holding or the Company, any merger, consolidation, liquidation or dissolution
of Holding or the Company, any
4
direct or indirect transfer of securities by any Permitted Holder or otherwise;
(b) the sale, lease or transfer, in one transaction or a series of related
transactions, of all or substantially all the assets of the Company and its
Subsidiaries, taken as a whole, to a "person" (as defined above) other than one
or more Permitted Holders; (c) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board of
directors of the Company or Holding, as the case may be (together with any new
directors whose election by such board of directors of the Company or Holding,
as the case may be, or whose nomination for election by the shareholders of the
Company or Holding, as the case may be, was approved by a vote of a majority of
the directors of the Company or Holding, as the case may be, then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved), and any
directors who are designees of a Principal or a Related Party of a Principal or
were nominated by a Principal or a Related Party of a Principal, cease for any
reason to constitute a majority of the board of directors of the Company or
Holding, as the case may be, then in office; or (d) the merger or consolidation
of the Company or Holding with or into another Person or the merger of another
Person with or into the Company or Holding, other than, in each case, a
transaction following which securities that represented at least a majority of
the voting power of the Voting Stock of the Company immediately prior to such
transaction (or other securities into which such securities are converted as
part of such merger or consolidation transaction) constitute at least a majority
of the voting power of the Voting Stock of the surviving Person.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Price Protection Agreement" means any forward contract,
commodity swap, commodity option or other similar agreement or arrangement
relating to, or the value of which is dependent upon or which is designed to
protect such Person against, fluctuations in commodity prices.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of: (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements are available to (b) Consolidated
Interest Expense for such four fiscal quarters; PROVIDED, HOWEVER, that: (i) if
the Company or any Restricted Subsidiary has Incurred any Indebtedness since the
beginning of such period that remains
5
outstanding on such date of determination or if the transaction giving rise to
the need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness as if
such Indebtedness had been Incurred on the first day of such period (except that
in making such computation, the amount of Indebtedness under any revolving
credit facility outstanding on the date of such calculation will be computed
based on (1) the average daily balance of such Indebtedness during such four
fiscal quarters or such shorter period for which such facility was outstanding
or (2) if such facility was created after the end of such four fiscal quarters,
the average daily balance of such Indebtedness during the period from the date
of creation of such facility to the date of such calculation) and the discharge
of any other Indebtedness repaid, repurchased, defeased or otherwise discharged
with the proceeds of such new Indebtedness as if such discharge had occurred on
the first day of such period, (ii) if the Company or any Restricted Subsidiary
has repaid, repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date
of the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such period shall
be calculated on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted Subsidiary has
not earned the interest income actually earned during such period in respect of
cash or Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness, (iii) if since the beginning of such
period the Company or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets that are the
subject of such Asset Disposition for such period or increased by an amount
equal to the EBITDA (if negative) directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (iv) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business
(including an operating plant or other similar facility), EBITDA
6
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Indebtedness)
as if such Investment or acquisition occurred on the first day of such period,
and (v) 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
Asset Disposition or any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (iii) or (iv) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of assets
occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to any calculation under this definition, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of
the Company. Any such pro forma calculations may include operating expense
reductions (net of associated expenses) for such period resulting from the
acquisition or other Investment which is being given pro forma effect that (a)
would be permitted pursuant to Rule 11-02 of Regulation S-X under the Securities
Act or (b) have been realized or for which substantially all the steps necessary
for realization have been taken or at the time of determination are reasonably
expected to be taken within six months following any such acquisition or other
Investment, including, but not limited to, the execution, termination,
renegotiation or modification of any contracts, the termination of any personnel
or the closing of any facility or lower material costs, as applicable, PROVIDED
that, in any case, such adjustments shall be calculated on an annualized basis
and such adjustments are set forth in an Officers' Certificate signed by the
Company's chief financial officer and another Officer which states in detail (i)
the amount of such adjustment or adjustments, (ii) that such adjustment or
adjustments are based on the reasonable good faith beliefs of the officers
executing such Officers' Certificate at the time of such execution and (iii)
that such adjustment or adjustments and the plan or plans related thereto have
been reviewed and approved by the Board of Directors. Any such Officers'
Certificate shall be provided to the Trustee if the Company Incurs any
Indebtedness or takes any other action under this Indenture in reliance thereon.
If any Indebtedness, whenever Incurred, bears a floating rate of interest and is
being given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term as at the date of determination in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Consolidated Restricted Subsidiaries,
minus any amortization of debt issuance costs, plus, to the extent Incurred by
the Company and its Consolidated Restricted Subsidiaries in such period but not
included in such interest expense, without duplication: (a) interest expense
attributable to Capitalized Lease Obligations and the interest
7
expense attributable to leases constituting part of a Sale/Leaseback
Transaction, (b) amortization of debt discount, (c) capitalized interest, (d)
noncash interest expense, (e) commissions, discounts and other fees and charges
attributable to letters of credit and bankers' acceptance financing, (f)
interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by the Company or any Restricted Subsidiary, (g) net
costs associated with Hedging Obligations (including amortization of fees), (h)
dividends in respect of all Disqualified Stock of the Company and all Preferred
Stock of any of the Subsidiaries of the Company, to the extent held by Persons
other than the Company or a Wholly Owned Subsidiary (except to the extent paid
in Capital Stock (other than Disqualified Stock)) and (i) interest Incurred in
connection with investments in discontinued operations, and (j) commissions,
discounts, yield and other financing fees and financing charges Incurred in
connection with any transaction (including, without limitation, a Receivables
Facility) pursuant to which the Company or any Restricted Subsidiary of the
Company may sell, convey or otherwise transfer or grant a security interest in
any accounts receivable or related assets of the type specified in the
definition of "Receivables Facility." For purposes of the foregoing, total
interest expense will be determined after giving effect to any net proceeds paid
or received by the Company and its Subsidiaries with respect to Interest Rate
Agreements.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Consolidated Subsidiaries for such period; PROVIDED, HOWEVER,
that there shall not be included in such Consolidated Net Income: (a) any net
income of any Person (other than the Company) if such Person is not a Restricted
Subsidiary, except that: (i) subject to the limitations contained in clause (d)
below, the Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution made to a Restricted Subsidiary, to the
limitations contained in clause (c) below) and (ii) the Company's equity in a
net loss of any such Person for such period shall be included in determining
such Consolidated Net Income to the extent such loss has been funded in such
period with cash from the Company or a Restricted Subsidiary; (b) any net income
(or loss) of any Person acquired by the Company or a Subsidiary of the Company
in a pooling of interests transaction for any period prior to the date of such
acquisition; (c) any net income (or loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that: (i) subject to
the limitations contained in clause (d) below, the Company's equity in the net
income of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution made to another
8
Restricted Subsidiary, to the limitation contained in this clause) and (ii) the
Company's equity in a net loss of any such Restricted Subsidiary for such period
shall be included in determining such Consolidated Net Income; (d) any net gain
or loss realized upon the sale or other disposition of any asset of the Company
or its Consolidated Subsidiaries (including pursuant to any Sale/Leaseback
Transaction) that is not sold or otherwise disposed of in the ordinary course of
business and any net gain or loss realized upon the sale or other disposition of
any Capital Stock of any Person; (e) any net extraordinary gain or loss; (f) the
cumulative effect of a change in accounting principles; (g) any noncash
compensation charges or other noncash expenses or charges arising from the grant
of or issuance or repricing of stock, stock options or other equity-based awards
or any amendment, modification, substitution or change of any such stock, stock
options or other equity-based awards; and (h) any non-recurring fees, charges or
other expenses (including bonus and retention payments) made or incurred in
connection with the Acquisition and the transactions contemplated thereby.
Notwithstanding the foregoing, for the purpose Section 4.04 only, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under such
covenant pursuant to clause (a)(iv)(3)(D) thereof.
"Consolidated Step-Up Depreciation and Amortization" means, with
respect to any Person for any period, the total amount of depreciation and
amortization related to the write-up of assets for such period on a consolidated
basis in accordance with GAAP to the extent (a) such depreciation and
amortization results from purchase accounting adjustments in connection with the
Acquisition and (b) such depreciation and amortization was deducted in computing
Consolidated Net Income.
"Consolidation" means the consolidation of the amounts of each of the
Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; PROVIDED, HOWEVER, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary shall
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the credit agreement dated as of the Closing
Date, as amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), refinanced,
restructured or otherwise modified from time to time, among the Company,
Holding, the lenders from time to time party thereto, Xxxxxxx Xxxxx Credit
Partners L.P., as administrative agent, JPMorgan Chase Bank, as syndication
agent, Fleet National Bank, as collateral agent, issuing bank and swing line
lender, and The Royal Bank of Scotland plc and GE Capital Corporation, as
co-documentation agents.
"Credit Facility" means, one or more debt facilities (including,
without limitation, the Credit Agreement), commercial paper facilities or
9
other debt instruments, indentures or agreements, providing for revolving credit
loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables), letters of credit or other debt
obligations, in each case, as amended, restated, modified, renewed, refunded,
restructured, supplemented, replaced or refinanced in whole or in part from time
to time, including, without limitation, any amendment increasing the amount of
Indebtedness Incurred or available to be borrowed thereunder, extending the
maturity of any Indebtedness Incurred thereunder or contemplated thereby or
deleting, adding or substituting one or more parties thereto (whether or not
such added or substituted parties are banks or other institutional lenders).
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreements, futures contract, options contract,
synthetic cap or other similar agreement or arrangement to which such Person is
a party or of which it is a beneficiary for the purpose of hedging foreign
currency risk.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Designated Noncash Consideration" means the Fair Market Value of
non-cash consideration received by the Company or any of its Restricted
Subsidiaries in connection with an Asset Disposition that is designated as such
pursuant to an Officers' Certificate. The aggregate Fair Market Value of the
Designated Noncash Consideration, taken together with the Fair Market Value at
the time of receipt of all other Designated Noncash Consideration then held by
the Company, may not exceed $5.0 million at the time of the receipt of the
Designated Noncash Consideration (with the Fair Market Value being measured at
the time received and without giving effect to subsequent changes in value).
"Designated Senior Indebtedness" of the Company means (a) the Bank
Indebtedness and (b) any other Senior Indebtedness of the Company that, at the
date of determination, has an aggregate principal amount outstanding of, or
under which, at the date of determination, the holders thereof are committed to
lend up to at least $15.0 million and is specifically designated by the Company
in the instrument evidencing or governing such Senior Indebtedness as
"Designated Senior Indebtedness" for purposes of this Indenture. "Designated
Senior Indebtedness" of a Note Guarantor has a correlative meaning. The Company
and each Note Guarantor shall provide to the Trustee from time to time, and upon
receipt by the Trustee of a Blockage Notice or Guarantee Blockage Notice
pursuant to Articles 10 and 12 hereof, respectively, a list of its Designated
Senior Indebtedness and the names and contact numbers of each Representative
with respect to each issue of Designated Senior Indebtedness. Subject to Article
7 hereof, the Trustee shall be entitled to rely conclusively on any such list.
10
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event: (a) matures or is mandatorily redeemable at the option
of the holder thereof, in whole or in part, pursuant to a sinking fund
obligation or otherwise, (b) is convertible or exchangeable at the option of the
holder thereof, in whole or in part, for Indebtedness or Disqualified Stock
(excluding Capital Stock convertible or exchangeable solely at the option of the
Company or a Restricted Subsidiary; PROVIDED, HOWEVER, that any such conversion
or exchange shall be deemed an Incurrence of Indebtedness or Disqualified Stock,
as applicable) or (c) is redeemable at the option of the holder thereof, in
whole or in part, in the case of each of clauses (a), (b) and (c), on or prior
to the 91st day after the Stated Maturity of the Notes; PROVIDED, HOWEVER, that
only the portion of Capital Stock that so matures or is mandatorily redeemable,
is so convertible or exchangeable or is redeemable at the option of the holder
thereof prior to such date will be deemed Disqualified Stock and any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the 91st day after the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions under Sections 4.06 and 4.08;
PROVIDED, FURTHER that any class of Capital Stock of such Person that, by its
terms, authorized such Person to satisfy in full its obligations with respect to
payment of dividends or upon maturity, redemption (pursuant to a sinking fund or
otherwise) or repurchase thereof or other payment obligations or otherwise by
delivery of Capital Stock that is not Disqualified Stock, and that is not
convertible, puttable or exchangeable for Disqualified Stock or Indebtedness,
shall not be deemed Disqualified Stock so long as such Person satisfied its
obligations with respect thereto solely by the delivery of Capital Stock that is
not Disqualified Stock.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for such
period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its Consolidated Restricted Subsidiaries; (b) Consolidated Interest Expense;
(c) depreciation expense of the Company and its Consolidated Restricted
Subsidiaries; (d) amortization expense of the Company and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period); (e) plant shutdown costs and
acquisition integration costs; and (f) all other noncash charges of the Company
and its Consolidated Restricted Subsidiaries (excluding any such noncash charge
to the extent it represents an accrual of or reserve for cash expenditures in
any future period) less all non-cash items of income (other than accrual of
revenue in the ordinary course of business) of the Company and its Restricted
Subsidiary in each case for such period. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the depreciation and
amortization and noncash
11
charges of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be dividended to the Company by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Equity Offering" means a public or private sale for cash of Capital
Stock (other than Disqualified Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair Market
Value will be determined in good faith by the Board of Directors, whose
determination will be conclusive and evidenced by a resolution of the Board of
Directors; PROVIDED, HOWEVER, that for purposes of Section 4.04(a)(iv)(3)(B), if
the Fair Market Value of the property or assets in question is so determined to
be in excess of $20.0 million, such determination must be confirmed by a
recognized appraisal or investment banking firm.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
(x) that is not organized under the laws of the United States of America or any
State thereof or the District of Columbia or (y) was organized under the laws of
the United States of America or any state thereof or the District of Columbia
that has no material assets other than Capital Stock of one or more foreign
entities of the type described in clause (x) above and is not a guarantor of
Indebtedness under the Credit Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect (i) with respect to periodic reporting
requirements, from time to time, and (ii) otherwise on the Closing Date,
including those set forth in: (a) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) statements and pronouncements of the Financial Accounting
Standards Board, (c) such other statements by such other entities as approved by
a significant segment of the accounting profession, and (d) the rules and
regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from
the accounting staff of the SEC. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
12
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); PROVIDED, HOWEVER, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning. The term "Guarantor" shall mean any Person Guaranteeing
any obligation.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity
Price Protection Agreement.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term
"Incurrence" when used as a noun shall have a correlative meaning. The accretion
of principal of a non-interest bearing or other discount security and payment of
interest on any Indebtedness in the form of additional Indebtedness or the
payment on Disqualified Capital Stock in the form of additional shares of
Capital Stock, shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication: (a) the principal of and premium (if any) in
respect of indebtedness of such Person for borrowed money; (b) the principal of
and premium (if any) in respect of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (c) the principal
component of all obligations of such Person in respect of letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto except to the extent such reimbursement obligation arises in the
ordinary course of business and relates to a Trade Payable); (d) the principal
component of all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is due more than
one year after the date of placing such property in service or taking delivery
and title thereto or the completion of such services other than earn-outs,
indemnities and similar provisions; (e) all
13
Capitalized Lease Obligations and all Attributable Debt of such Person; (f) the
principal component or liquidation preference of all obligations of such Person
with respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Subsidiary of such Person, any
Preferred Stock (but excluding, in each case, any accrued dividends); (g) the
principal component of all Indebtedness of other Persons secured by a Lien on
any asset of the Person the Indebtedness of which is being determined, whether
or not such Indebtedness is assumed by such Person; PROVIDED, HOWEVER, that the
amount of Indebtedness of such Person shall be the lesser of: (i) the Fair
Market Value of such asset at such date of determination and (ii) the amount of
such Indebtedness of such other Persons; (h) to the extent not otherwise
included in this definition, net obligations of such Person under Hedging
Obligations of such Person (the amount of any such obligations to be equal at
any time to the termination value of such agreement or arrangement giving rise
to such obligations that would be payable by such Person at such time); (i) all
amounts outstanding and other obligations of such Person in respect of a
Receivables Facility; and (j) all obligations of the type referred to in clauses
(a) through (i) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable, directly
or indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
Notwithstanding anything in this definition to the contrary, characterization of
any Receivables Facility as Indebtedness is for purposes of the Indenture
covenants only, and such characterization shall not preclude the Company or any
Restricted Subsidiary from characterizing any Receivables Facility as a sale for
GAAP or any other purpose.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances and extensions of credit to customers in the ordinary
course of business that are recorded as accounts receivable on the balance sheet
of the lender) or other extension of credit (including by way of Guarantee or
similar arrangement) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person; PROVIDED that
none of the following will be deemed to be an Investment: (a) Hedging
Obligations entered into in
14
compliance with Section 4.03(b)(iv); and (b) endorsements of negotiable
instruments and documents in the ordinary course of business. For purposes of
the definition of "Unrestricted Subsidiary" and Section 4.04: (i) "Investment"
shall include the portion (proportionate to the Company's equity interest in
such Restricted Subsidiary) of the Fair Market Value of the net assets of any
Restricted Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; PROVIDED, HOWEVER, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to: (1) the Company's "Investment"
in such Subsidiary at the time of such redesignation less (2) 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.
"Issue Date", with respect to any Initial Notes, means the date on
which the Initial Notes are originally issued.
"Legal Holiday" means a Saturday, Sunday or other day on which banking
institutions are not required by law or regulation to be open in the State of
New York.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien (statutory or otherwise) or charge of any kind (including any conditional
sale or other title retention agreement or lease in the nature thereof and any
agreement to give any security interest) upon or with respect to any property of
any kind, real or personal, movable or immovable.
"Net Available Cash" from an Asset Disposition means payments of cash
or Cash Equivalents received (including any payments of cash or Cash Equivalents
received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other
disposition of any securities received as consideration, but in each case only
as and when received, but excluding any other consideration received in the form
of assumption by the acquiring Person of Indebtedness or other obligations
relating to the properties or assets that are the subject of such Asset
Disposition or received in any other noncash form) therefrom, in each case net
of:
(a) all legal, accounting, investment banking, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (b) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition, (c)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries
15
or joint ventures as a result of such Asset Disposition and (d) appropriate
amounts to be provided by the seller as a reserve, in accordance with GAAP,
against any liabilities associated with the property or other assets disposed of
in such Asset Disposition and retained by the Company or any Restricted
Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, listing fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Note Guarantee" means each Guarantee of the obligations with respect
to the Notes issued by a Person pursuant to the terms of this Indenture.
"Note Guarantor" means any Person that has issued a Note Guarantee.
"Offering Memorandum" means the offering memorandum relating to the
issuance of the Original Notes dated July 17, 2002.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company. "Officer" of a Note Guarantor has a
correlative meaning.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, a Note Guarantor or the Trustee.
"Permitted Holders" means Principals and Related Parties and any
Person acting in the capacity of an underwriter in connection with a public or
private offering of the Company's or Holding's Capital Stock.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in: (a) the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
(b) another Person if as a result of such Investment such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all
its assets to, the Company or a Restricted Subsidiary; (c) Temporary Cash
Investments; (d) receivables owing to the Company or any Restricted Subsidiary
if created or acquired in the ordinary course of business; (e) payroll, travel,
commission and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes
and that are made in the ordinary course of business; (f) loans or advances to
employees, directors and consultants not exceeding $2.0 million in the aggregate
outstanding at any one time; (g) loans, deposits, prepayments and other credits
or
16
advances to customers or suppliers in the ordinary course of business; (h)
stock, obligations or securities received in settlement or good faith compromise
of debts created in the ordinary course of business and owing to the Company or
any Restricted Subsidiary or in satisfaction of judgments including pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of a debtor; (i) any Person to the extent such Investment represents
the noncash portion of the consideration received for an Asset Disposition that
was made pursuant to and in compliance with Section 4.06; (j) Investments in
prepaid expenses, negotiable instruments held for collection and lease utility
and worker's compensation, performance and other similar deposits provided to
third parties in the ordinary course of business; (k) Currency Agreements,
Interest Rate Agreements and Commodity Price Protection Agreements and other
Hedging Obligations permitted by this Indenture that are entered into in the
ordinary course of business and not for speculative purposes; (l) Investments
acquired in exchange for the issuance of Capital Stock (other than Disqualified
Stock) of the Company or acquired with the Net Cash Proceeds received by the
Company after the date of this Indenture from the issuance and sale of Capital
Stock (other than Disqualified Stock); PROVIDED that such Net Cash Proceeds are
used to make such Investment within 90 days of the receipt thereof and the
amount of all such Net Cash Proceeds shall be excluded from Section
4.04(a)(iv)(3)(B); (m) Investments in existence on the date of this Indenture or
made pursuant to a legally binding written commitment in existence on the date
of this Indenture; (n) Guarantees issued in accordance with Section 4.03; (o)
Investments in a trust, limited liability company, special purpose entity or
other similar entity in connection with a Receivables Facility permitted under
Section 4.03; PROVIDED that such Investment is necessary or advisable to effect
such Receivables Facility; (p) Investments in joint ventures or similar projects
by the Company and its Restricted Subsidiaries on the date of the investment in
an aggregate amount not to exceed $20.0 million; (q) loans or advances to
employees, directors or consultants the proceeds of which are used to purchase
Capital Stock (other than Disqualified Stock) of the Company or Holding (and,
with respect to purchases of the Capital Stock of Holding, the proceeds of which
are paid or contributed to the Company); and (r) Indebtedness of the Company or
a Restricted Subsidiary under Section 4.03(b)(ii). For purposes of this
definition, the value of any Investment will be the Fair Market Value on the
date made without any subsequent changes for any increases or decreases in the
Fair Market Value of such Investment.
"Permitted Junior Securities" means: (a) Equity Interests in the
Company or any Guarantor; or (b) debt securities that are subordinated to all
Senior Indebtedness and any debt securities issued in exchange for Senior
Indebtedness to substantially the same extent as, or to a greater extent than,
the Notes and the Note Guarantees are subordinated to Senior Indebtedness under
the terms of this Indenture.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
17
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Principals" means each of GS Capital Partners 2000, L.P., GS Capital
Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs
KG, Bridge Street Special Opportunities Fund 2000, L.P., GS Capital Partners
2000 Employee Fund, L.P., Stone Street Fund 2000 L.P., X.X. Xxxxxx Partners
Global Investors, L.P., X.X. Xxxxxx Partners Global Investors (Cayman), L.P.,
X.X. Xxxxxx Partners Global Investors A, L.P., X.X. Xxxxxx Partners Global
Investors (Cayman) II, L.P. and X.X. Xxxxxx Partners (BHCA), L.P.
"Purchase Money Indebtedness" means Indebtedness: (a) consisting of
the deferred purchase price of an asset (or Capital Stock of a corporation
substantially all the assets of which consist of such asset), conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations (including obligations to a third party to finance the amount
being paid to the seller), in each case where the maturity of such Indebtedness
does not exceed the anticipated useful life of the asset being financed, and (b)
Incurred to finance the acquisition by the Company or a Restricted Subsidiary of
such asset (or such Capital Stock), including additions and improvements;
PROVIDED, HOWEVER, that such Indebtedness is Incurred within 180 days after the
acquisition by the Company or such Restricted Subsidiary of such asset (or such
Capital Stock).
"Receivables Facility" means one or more receivables financing
facilities, as amended from time to time, pursuant to which the Company and/or
any of its Restricted Subsidiaries, directly or indirectly through another
Subsidiary, sells or otherwise transfers rights in its accounts receivable
pursuant to arrangements customary in the industry.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (or the net proceeds of which are used to do
any of the foregoing)any Indebtedness of the Company or any Restricted
18
Subsidiary existing on the Closing Date or Incurred in compliance with this
Indenture (including Indebtedness of the Company that Refinances Indebtedness of
any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that
Refinances Indebtedness of another Restricted Subsidiary, including Indebtedness
that Refinances Refinancing Indebtedness); PROVIDED, HOWEVER, that: (a) the
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (b) the Refinancing Indebtedness
has an Average Life at the time such Refinancing Indebtedness is Incurred that
is equal to or greater than the Average Life of the Indebtedness being
Refinanced, (c) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or if
issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being Refinanced (plus all accrued interest on
the Indebtedness and the amount of all expenses and premiums Incurred in
connection therewith) and (d) if the Indebtedness being Refinanced is
subordinated in right of payment to the Notes, such Refinancing Indebtedness is
subordinated in right of payment to the Notes at least to the same extent as the
Indebtedness being Refinanced; PROVIDED FURTHER, HOWEVER, that Refinancing
Indebtedness shall not include: (i) Indebtedness of a Restricted Subsidiary that
is not a Note Guarantor that Refinances Indebtedness of the Company or (ii)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Related Party" means, (a) any controlling stockholder or 80% (or
more) owned Subsidiary of any Principal; or (b) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding an 80% or more controlling interest of which
consist of any one or more Principals and/or such other Persons referred to in
the immediately preceding clause (a).
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired by the Company or a Restricted Subsidiary
whereby the Company or a Restricted Subsidiary transfers such property to a
Person and the Company or such Restricted Subsidiary leases it from such Person,
other than leases between the Company and a Wholly Owned Subsidiary or between
Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
19
"Secured Indebtedness" means any Indebtedness of the Company or any
Restricted Subsidiary secured by a Lien. "Secured Indebtedness" of a Note
Guarantor has a correlative meaning.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" of the Company or any Note Guarantor means Bank
Indebtedness and the principal of, premium (if any) and accrued and unpaid
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Company or any Note Guarantor,
regardless of whether or not a claim for post-filing interest is allowed in such
proceedings), and fees and other amounts owing in respect of, all other
Indebtedness of the Company or any Note Guarantor, as applicable, whether
outstanding on the Closing Date or thereafter Incurred, unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding it
is provided that such obligations are PARI PASSU with or subordinated in right
of payment to the Notes or such Note Guarantor's Note Guarantee, as applicable;
PROVIDED, HOWEVER, that Senior Indebtedness of the Company or any Note Guarantor
shall not include: (a) any obligation of the Company or any Subsidiary of the
Company or of such Note Guarantor to the Company or any other Subsidiary of the
Company; (b) any liability for Federal, state, local or other taxes owed or
owing by the Company or such Note Guarantor, as applicable; (c) any accounts
payable or other liability to trade creditors arising in the ordinary course of
business (including Guarantees thereof or instruments evidencing such
liabilities); (d) any Indebtedness or obligation of the Company or such Note
Guarantor, as applicable (and any accrued and unpaid interest in respect
thereof) that by its terms is subordinate in right of payment to any other
Indebtedness or obligation of the Company or such Note Guarantor, as applicable,
including any Senior Subordinated Indebtedness and any Subordinated Obligations
of the Company or such Note Guarantor, as applicable; (e) any obligations with
respect to any Capital Stock; or (f) any Indebtedness (or portion thereof)
Incurred in violation of this Indenture.
"Senior Subordinated Indebtedness" of the Company means the Notes and
any other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank equally with the Notes in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company which is not Senior Indebtedness. "Senior Subordinated
Indebtedness" of a Note Guarantor has a correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC in effect on the date of this Indenture.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal
20
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Stockholders' Agreement" means the stockholders' agreement entered
into in connection with the Acquisition.
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement. "Subordinated Obligation" of a Note Guarantor has a correlative
meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.
"Tax Sharing Agreement" means the Amended and Restated Tax Sharing
Agreement, made as of March 15, 2001, by and among Holding and its Subsidiaries.
"Temporary Cash Investments" means any of the following: (a) United
States dollars or eurodollars or any investment in direct obligations of the
United States of America or any agency thereof or obligations Guaranteed or
insured by the United States of America or any agency or instrumentality
thereof, (b) investments in time deposit accounts, certificates of deposit and
eurodollar time deposits, banker acceptances and money market deposits (or in
the case of Foreign Subsidiaries, the foreign equivalent) maturing within 270
days of the date of acquisition thereof issued by a bank or trust company that
is organized under the laws of the United States of America, any state thereof
or any foreign country recognized by the United States of America having
capital, surplus and undivided profits aggregating in excess of $250,000,000 (or
the foreign currency equivalent thereof) and whose longterm debt is rated "A"
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act), (c) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (a) or (b) above
entered into with a bank meeting the qualifications described in clause (b)
above, (d) investments in commercial paper, maturing not more than 270 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of
21
America with a rating at the time as of which any investment therein is made of
"P-1" (or higher) according to Xxxxx'x Investors Service, Inc. ("Moody's") or
"A-1" (or higher) according to Standard and Poor's Ratings Service, a division
of The XxXxxx-Xxxx Companies, Inc. ("S&P"), (e) investments in securities with
maturities of 270 days or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by Moody's, (f) money market funds at least 95% of
the assets of which constitute Temporary Cash Investments of the kinds described
in clauses (a) through (e) of this definition and (g) solely in respect of the
ordinary course cash management activities of the Foreign Subsidiaries,
equivalents of the investments described in clause (a) above to the extent
guaranteed by the United Kingdom, the European Union or the country in which the
Foreign Subsidiary operates and equivalents of the investments described in
clause (b) above issued, accepted or offered by (i) the local office of any
commercial bank meeting the requirements of clause (d) above in the jurisdiction
of organization of the applicable Foreign Subsidiary or (ii) the local office of
any commercial bank organized under the laws of the jurisdiction of organization
of the applicable Foreign Subsidiary which commercial bank (1) has combined
capital and surplus and undivided profits of not less than $250.0 million, (2) a
long-term rating for Dollar- denominated obligations of at least "A-1" from S&P
or the equivalent rating from Moody's or (3) is organized in the country in
which the Foreign Subsidiary operates.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the Closing Date.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means: (a) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (b) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary of the
Company or Person becoming a
22
Subsidiary through merger or consolidation or Investment therein) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or owns or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; PROVIDED, HOWEVER, that either: (i) the
Subsidiary to be so designated has total Consolidated assets of $1,000 or less
or (ii) if such Subsidiary has Consolidated assets greater than $1,000, then
such designation would be permitted under Section 4.04. The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
PROVIDED, HOWEVER, that immediately after giving effect to such designation: (x)
the Company could Incur $1.00 of additional Indebtedness under Section 4.03(a)
and (y) no Default shall have occurred and be continuing. Any such designation
of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by the
Board of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the Company
all the Capital Stock of which (other than directors' qualifying shares) is
owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
"Affiliate Transaction" 4.07(a)
"Appendix" Preamble
"Bankruptcy Law" 6.01
"Blockage Notice" 10.03
"Change of Control Offer" 4.08(b)
"covenant defeasance option" 8.01(b)
"Custodian" 6.01
23
"Definitive Notes" Appendix
"Event of Default" 6.01
"Exchange Notes" Preamble
"Global Notes" Appendix
"Guarantee Blockage Notice" 12.03
"Guarantee Payment Blockage Period" 12.03
"Guaranteed Obligations" 11.01
"incorporated provision" 13.01
"Initial Notes" Preamble
"judgment default provision" 6.01(h)
"legal defeasance option" 8.01(b)
"Legal Holiday" 13.08
"Notes Custodian" Appendix
"Notice of Default" 6.01
"Offer" 4.06(b)
"Original Notes" Preamble
"pay its Guarantee" 12.03
"pay the Notes" 10.03
"Paying Agent" 2.04
"Payment Blockage Period" 10.03
"protected purchaser" 2.08
"Purchase Date" 4.06(c)(i)
"Registered Exchange Offer" Appendix
"Registrar" 2.04
"Registration Rights Agreement" Appendix
"Restricted Payment" 4.04(a)
"Successor Company" 5.01(a)
"Successor Guarantor" 5.01(b)
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes and the Note Guarantees.
"indenture security holder" means a Holder.
24
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the Note
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "including" means including without limitation;
(d) words in the singular include the plural and words in the plural
include the singular;
(e) unsecured Indebtedness shall not be deemed to be subordinate or
junior in right of payment to Secured Indebtedness merely because it is
unsecured; and Indebtedness which has different security or different
priorities in the same security and will not be deemed subordinate in right
of payment to Secured Indebtedness due to such differences.
(f) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(g) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
25
ARTICLE 2
THE NOTES
SECTION 2.01. AMOUNT OF NOTES; ISSUABLE IN SERIES. The aggregate
principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited. The Notes may be issued in one or more series. All Notes
of any one series shall be substantially identical except as to denomination,
legends and the date they are issued.
With respect to any Additional Notes issued after the Closing Date
(except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08,
2.09, 2.10 or 3.06 or the Appendix), there shall be (a) established in or
pursuant to a resolution of the Board of Directors and (b) (i) set forth or
determined in the manner provided in an Officers' Certificate or (ii)
established in one or more indentures supplemental hereto, prior to the issuance
of such Additional Notes:
(1) whether such Additional Notes shall be issued as part of a new or
existing series of Notes and the title of such Additional Notes (which
shall distinguish the Additional Notes of the series from Notes of any
other series);
(2) the aggregate principal amount of such Additional Notes which may
be authenticated and delivered under this Indenture, which may be in an
unlimited aggregate principal amount;
(3) the issue price and issuance date of such Additional Notes,
including the date from which interest on such Additional Notes shall
accrue;
(4) if applicable, that such Additional Notes shall be issued in a
private placement transaction with registration rights;
(5) if applicable, that such Additional Notes shall be issuable in
whole or in part in the form of one or more Global Notes and, in such case,
the respective depositaries for such Global Notes, the form of any legend
or legends which shall be borne by such Global Notes in addition to or in
lieu of those set forth in Exhibit A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.3 of the Appendix in
which any such Global Note may be exchanged in whole or in part for
Additional Notes registered, or any transfer of such Global Note in whole
or in part may be registered, in the name or names of Persons other than
the depositary for such Global Note or a nominee thereof; and
26
(6) if applicable, that such Additional Notes shall not be issued in
the form of Initial Notes as set forth in Exhibit A, but shall be issued in
the form of Exchange Notes as set forth in Exhibit B.
If any of the terms of any Additional Notes are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or the indenture supplemental hereto
setting forth the terms of the Additional Notes.
SECTION 2.02. FORM AND DATING. Provisions relating to the Original
Notes, the Additional Notes and the Exchange Notes are set forth in the
Appendix, which is hereby incorporated in and expressly made a part of this
Indenture. The (a) Original Notes and the Trustee's certificate of
authentication and (b) any Additional Notes (if issued as Transfer Restricted
Notes) and the Trustee's certificate of authentication shall each be
substantially in the form of Exhibit A hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Exchange Notes and any
Additional Notes issued other than as Transfer Restricted Notes and the
Trustee's certificate of authentication shall each be substantially in the form
of Exhibit B hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company or any
Note Guarantor is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). Each Note shall
be dated the date of its authentication. The Notes shall be issuable only in
registered form without interest coupons and only in denominations of $1,000 and
integral multiples thereof.
SECTION 2.03. EXECUTION AND AUTHENTICATION. Two Officers shall sign
the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate and make available for delivery Notes
as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall be
furnished to the Company. Unless limited by the terms of
27
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. REGISTRAR AND PAYING AGENT. (a) The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where Notes
may be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents. The Company
may change any Paying Agent or Registrar without notice to any Holder. The term
"Paying Agent" includes any additional paying agent, and the term "Registrar"
includes any co-registrars. The Company initially appoints the Trustee as (i)
Registrar and Paying Agent in connection with the Notes and (ii) the Notes
Custodian with respect to the Global Notes.
(b) The Company shall enter into an appropriate agency agreement in
its discretion with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically organized Wholly Owned Subsidiaries may act
as Paying Agent or Registrar.
(c) The Company may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; PROVIDED, HOWEVER,
that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Company and the Trustee.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each due
date of the principal of and interest and Additional Interest (if any) on any
Note, the Company shall deposit with the Paying Agent (or if the Company or a
Wholly Owned Subsidiary is acting as Paying Agent, segregate and hold in trust
for the benefit of the Persons entitled thereto) a sum sufficient to pay such
principal, interest and Additional Interest (if any) when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying
28
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal of and interest and
Additional Interest (if any) on the Notes, and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06. HOLDER LISTS. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at
least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.07. TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer and in compliance with the Appendix. When a Note is
presented to the Registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if its requirements therefor are met.
When Notes are presented to the Registrar with a request to exchange them for an
equal principal amount of Notes of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar's request. The Company may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section. The Company shall not be required to make and the Registrar need
not register transfers or exchanges of Notes selected for redemption (except, in
the case of Notes to be redeemed in part, the portion thereof not to be
redeemed) or any Notes for a period of 15 days before a selection of Notes to be
redeemed.
Prior to the due presentation for registration of transfer of any
Note, the Company, the Note Guarantors, the Trustee, the Paying Agent, and the
Registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and (subject to paragraph 2 of the Notes) interest, if any, on such
Note and for all other purposes whatsoever, whether or not such Note is overdue,
and none of the Company, any Note Guarantor, the Trustee, the Paying Agent, or
the Registrar shall be affected by notice to the contrary.
Any Holder of a Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interest in such Global Note may
29
be effected only through a book-entry system maintained by (a) the Holder of
such Global Note (or its agent) or (b) any Holder of a beneficial interest in
such Global Note, and that ownership of a beneficial interest in such Global
Note shall be required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.08. REPLACEMENT NOTES. If a mutilated Note is surrendered to
the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met, such that the Holder (a) satisfies the Company
or the Trustee within a reasonable time after such Holder has notice of such
loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Company or the Trustee prior to the Note being acquired by a protected purchaser
as defined in Section 8-303 of the Uniform Commercial Code (a "protected
purchaser") and (c) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond or other form of indemnity sufficient in the judgment of the
Trustee to protect the Company, the Trustee, the Paying Agent and the Registrar
from any loss that any of them may suffer if a Note is replaced. The Company and
the Trustee may charge the Holder for their expenses in replacing a Note. In the
event any such mutilated, lost, destroyed or wrongfully taken Note has become or
is about to become due and payable, the Company in its discretion may pay such
Note instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION 2.09. OUTSTANDING NOTES. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancelation and those described in this Section as not
outstanding. Subject to Section 13.06, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding and interest on it ceases to accrue unless the Trustee and the
Company receive proof satisfactory to them that the replaced Note is held by a
protected purchaser.
30
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal, interest and Additional Interest, if any, payable on that date
with respect to the Notes (or portions thereof) to be redeemed or maturing, as
the case may be, and the Paying Agent is not prohibited from paying such money
to the Holders on that date pursuant to the terms of this Indenture, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.10. TEMPORARY NOTES. In the event that Definitive Notes are
to be issued under the terms of this Indenture, until such Definitive Notes are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate Definitive Notes and deliver them in exchange for
temporary Notes upon surrender of such temporary Notes at the office or agency
of the Company, without charge to the Holder.
SECTION 2.11. CANCELATION. The Company at any time may deliver Notes
to the Trustee for cancelation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment or cancelation and
shall dispose of canceled Notes in accordance with its customary procedures or
deliver canceled Notes to the Company pursuant to written direction by an
Officer. The Company may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancelation. The Trustee shall not
authenticate Notes in place of canceled Notes other than pursuant to the terms
of this Indenture.
SECTION 2.12. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Notes, the Company shall pay the defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail or cause to be mailed to each Holder a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.13. CUSIP AND ISIN NUMBERS. The Company in issuing the Notes
may use "CUSIP" and ISIN numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" and ISIN numbers in notices of redemption as a
convenience to Holders; PROVIDED, HOWEVER, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice
31
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
SECTION 2.14. COMPUTATION OF INTEREST. Interest on the Notes will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem
Notes pursuant to paragraph 5 of the Notes, it shall notify the Trustee in
writing of the redemption date and the principal amount of Notes to be redeemed.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate setting forth the redemption date and the principal amount of Notes
to be redeemed and, upon request by the Trustee, an Opinion of Counsel from the
Company to the effect that such redemption will comply with the conditions
herein. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. If fewer than all the
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed pro
rata or by lot or by a method that the Trustee in its sole discretion shall deem
to be fair and appropriate. The Trustee shall make the selection from
outstanding Notes not previously called for redemption. The Trustee may select
for redemption portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of them the Trustee selects shall be in amounts
of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. (a) At least 30 days but not more
than 60 days before a date for redemption of Notes, the Company shall mail a
notice of redemption by first-class mail to each Holder of Notes to be redeemed
at such Holder's registered address. The notice shall identify the Notes to be
redeemed and shall state:
(i) the redemption date;
32
(ii) the redemption price and the amount of accrued interest to, but
not including, the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Notes are to be redeemed, the
certificate numbers and principal amounts of the particular Notes to be
redeemed;
(vi) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the Notes being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Notes.
(b) At the Company's request (which may be revoked at any time prior
to the time at which the Trustee shall have given such notice to the Holders),
the Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. In such event, the Company shall provide the Trustee with the
information required by this Section.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Notes called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Notes shall be paid at the redemption price stated in
the notice, plus accrued interest and Additional Interest, if any, to, but not
including, the redemption date; PROVIDED, HOWEVER, that if the redemption date
is after a regular record date and on or prior to the interest payment date, the
accrued interest and Additional Interest, if any, shall be payable to the Holder
of the redeemed Notes registered on the relevant record date. Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder. Notice mailed in the manner herein provided
shall be conclusively presumed to have been given, whether or not the Holder
receives such notice.
33
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or a Wholly Owned Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest and Additional Interest, if any, on all Notes or
portions thereof to be redeemed on that date other than Notes or portions of
Notes called for redemption that have been delivered by the Company to the
Trustee for cancelation. The Paying Agent shall promptly return to the Company
any money deposited with the Paying Agent in excess of the amounts necessary to
pay the principal of, plus accrued and unpaid interest and Additional Interest,
if any, on the Notes to be redeemed. On and after the redemption date, interest
shall cease to accrue on Notes or portions thereof called for redemption so long
as the Company has deposited with the Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid interest and Additional Interest, if any,
on, the Notes to be redeemed, unless the Paying Agent is prohibited from making
such payment pursuant to the terms of this Indenture.
SECTION 3.06. NOTES REDEEMED IN PART. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder (at the Company's expense) a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall promptly pay the
principal of and interest and Additional Interest, if any, on the Notes on the
dates and in the manner provided in the Notes and in this Indenture. Principal,
interest and Additional Interest, if any, shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with
this Indenture money sufficient to pay all principal and interest then due and
the Trustee or the Paying Agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC REPORTS. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC (unless the SEC will not accept such
filing), and provide the Trustee and Holders and prospective Holders (upon
request) within 15 days after it files them with the SEC,
34
copies of its annual report and the information, documents and other reports
that are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Section 314(a) of the TIA.
SECTION 4.03. LIMITATION ON INDEBTEDNESS. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; PROVIDED, HOWEVER, that the Company or any
Restricted Subsidiary that is a Note Guarantor may Incur Indebtedness (including
any Receivable Facility) if, on the date of such Incurrence and after giving
effect thereto, the Consolidated Coverage Ratio would be greater than 2 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its Restricted
Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness in an aggregate principal amount Incurred pursuant to
any Credit Facility and Indebtedness in an aggregate amount outstanding
under any Receivables Facility which together do not exceed $555.0 million
less the aggregate amount of all mandatory repayments of the principal of
any term Indebtedness under the Credit Agreement that have been made by the
Company or any of its Restricted Subsidiaries since the date of this
Indenture with the Net Available Cash of an Asset Disposition pursuant to
Section 4.06(a)(iii)(1); PROVIDED, HOWEVER, that Indebtedness in excess of
$505.0 million may be Incurred only if at the time of Incurrence (or at the
time of any other Incurrence of Indebtedness pursuant to this clause (i) in
excess of $505.0 million) the Company receives an amount equal to such
excess in cash from the issue or sale of Capital Stock (other than
Disqualified Stock) or from other capital contributions;
(ii) Indebtedness of the Company owed to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by
the Company or any Restricted Subsidiary; PROVIDED, HOWEVER, that (1) any
subsequent issuance or transfer of any Capital Stock or any other event
that results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to
the Company or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the issuer thereof, (2)
if the Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Notes and (3) if a Restricted Subsidiary
that is a Note Guarantor is the obligor on such Indebtedness and such
Indebtedness is owed to and held by a Restricted Subsidiary that is not a
Note Guarantor, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all obligations of such Restricted Subsidiary
with respect to its Note Guarantee;
35
(iii) Indebtedness (1) represented by the Notes (not including any
Additional Notes) and the Note Guarantees, (2) represented by the exchange
Notes to be issued in exchange for the Notes pursuant to the registration
rights agreement, (3) outstanding on the Closing Date (other than the
Indebtedness described in clauses (i) and (ii) above), (4) consisting of
Refinancing Indebtedness Incurred in respect of any Indebtedness described
in this clause (iii) or the foregoing paragraph (a) (including in any such
case Indebtedness that is Refinancing Indebtedness) and (5) consisting of
Guarantees of any Indebtedness permitted under Section 4.03(a) or this
Section 4.03(b);
(iv) Indebtedness (1) in respect of workers' compensation self-
insurance obligations, indemnities, performance bonds, bankers'
acceptances, letters of credit and surety, appeal or similar bonds provided
by the Company and the Restricted Subsidiaries in the ordinary course of
their business and in any such case any reimbursement obligations in
connection therewith, (2) under Interest Rate Agreements entered into for
bona fide hedging purposes of the Company in the ordinary course of
business; PROVIDED, HOWEVER, that such Interest Rate Agreements do not
increase the Indebtedness of the Company outstanding at any time other than
as a result of fluctuations in interest rates or by reason of fees,
indemnities and compensation payable thereunder, (3) under any Currency
Agreements; PROVIDED that such agreements are designed to protect the
Company or its Subsidiaries against fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and
compensation payable under Currency Agreements or (4) under any Commodity
Price Protection Agreements; PROVIDED that such agreements are designed to
protect the Company or its Subsidiaries against fluctuations in commodity
prices or by reason of fees, indemnities and compensation payable under
such Commodity Price Protection Agreements;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations in
an aggregate principal amount not in excess of $30.0 million at any time
outstanding;
(vi) Indebtedness of any Foreign Subsidiary in an aggregate principal
amount which does not exceed $15.0 million plus any Indebtedness of a
Foreign Subsidiary existing at the time it is acquired by the Company and
not Incurred in contemplation thereof, so long as after giving effect to
such acquisition, the Company could Incur $1.00 of additional Indebtedness
under Section 4.03(a);
(vii) obligations arising from agreements by the Company or a
Restricted Subsidiary to provide for indemnification, adjustment of
purchase price or similar obligations, earn-outs or other similar
obligations or from guarantees or letters of credit, surety bonds or
performance bonds securing any obligation of the Company or a Restricted
Subsidiary pursuant to such an agreement, in each case, Incurred in
connection with the acquisition or disposition of any business, assets or
Capital Stock of a Restricted Subsidiary;
36
(viii) shares of Preferred Stock of a Restricted Subsidiary issued to
the Company or another Restricted Subsidiary; PROVIDED that any subsequent
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 Preferred Stock;
(ix) Indebtedness of the Company and any Restricted Subsidiary to the
extent the net proceeds thereof are promptly deposited to defease or
discharge the Notes as described in Article 8.
(x) contingent liabilities arising out of endorsements of checks and
other negotiable instruments for deposit or collection or overdraft
protection in the ordinary course of business; and
(xi) Indebtedness (other than Indebtedness permitted to be Incurred
pursuant to Section 4.03(a) or any other clause of this Section 4.03(b)) in
an aggregate principal amount on the date of Incurrence that, when added to
all other Indebtedness Incurred pursuant to this clause (xi) and then
outstanding, shall not exceed $30.0 million.
(c) The Company shall not Incur any Indebtedness if such Indebtedness is
subordinate in right of payment to any Senior Indebtedness unless such
Indebtedness is Senior Subordinated Indebtedness or is expressly subordinated in
right of payment to Senior Subordinated Indebtedness. Unsecured Indebtedness is
not deemed to be subordinate in right of payment to Secured Indebtedness merely
because it is unsecured and Indebtedness which has different security or
different priorities in the same security shall not be deemed subordinate in
right of payment to Secured Indebtedness due to such differences. The Company
shall not Incur any Secured Indebtedness which is not Senior Indebtedness unless
contemporaneously therewith effective provision is made to secure the Notes
equally and ratably with (or on a senior basis to, in the case of Indebtedness
subordinated in right of payment to the Notes) such Secured Indebtedness for so
long as such Secured Indebtedness is secured by a Lien. A Note Guarantor shall
not Incur any Indebtedness if such Indebtedness is by its terms expressly
subordinate in right of payment to any Senior Indebtedness of such Note
Guarantor unless such Indebtedness is Senior Subordinated Indebtedness of such
Note Guarantor or is expressly subordinated in right of payment to Senior
Subordinated Indebtedness of such Note Guarantor. Unsecured Indebtedness is not
deemed to be subordinate in right of payment to Secured Indebtedness merely
because it is unsecured and Indebtedness which has different security or
different priorities in the same security shall not be deemed subordinate in
right of payment to Secured Indebtedness due to such differences. A Note
Guarantor shall not Incur any Secured Indebtedness that is not Senior
Indebtedness of such Note Guarantor unless
37
contemporaneously therewith effective provision is made to secure the Note
Guarantee of such Note Guarantor equally and ratably with (or on a senior basis
to, in the case of Indebtedness subordinated in right of payment to such Note
Guarantee) such Secured Indebtedness for as long as such Secured Indebtedness is
secured by a Lien.
(d) Notwithstanding any other provision of this Section 4.03, the maximum
amount of Indebtedness that the Company or any Restricted Subsidiary may Incur
pursuant to this Section shall not be deemed to be exceeded solely as a result
of fluctuations in the exchange rates of currencies. For purposes of determining
the outstanding principal amount of any particular Indebtedness Incurred
pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to the Credit
Agreement prior to or on the Closing Date shall be treated as Incurred pursuant
to Section 4.03(b)(i); (ii) Indebtedness permitted by this Section 4.03 need not
be permitted solely by reference to one provision permitting such Indebtedness
but may be permitted in part by one such provision and in part by one or more
other provisions of this Section permitting such Indebtedness; (iii) in the
event that Indebtedness meets the criteria of more than one of the types of
Indebtedness described in this Section, the Company, in its sole discretion,
shall classify such Indebtedness on the date of Incurrence and shall later be
permitted to reclassify all or a portion of such item of Indebtedness, in any
manner that complies with this Section, and only be required to include the
amount of such Indebtedness in one of such clauses; (iv) for purpose of
determining compliance with any dollar-denominated restriction on the Incurrence
of Indebtedness, denominated in a foreign currency, the dollar-equivalent
principal amount of such Indebtedness Incurred pursuant thereto shall be
calculated based on the relevant currency exchange rate in effect on the date
that such Indebtedness was Incurred, and any such foreign denominated
Indebtedness may be refinanced or replaced, or subsequently refinanced or
replaced, in an amount equal to the dollar-equivalent principal amount of such
Indebtedness on the date of such refinancing or replacement whether or not such
amount is greater or less than the dollar equivalent principal amount of the
Indebtedness on the date of initial Incurrence; (v) if Indebtedness is secured
by a letter of credit that serves only to secure such Indebtedness, then the
total amount deemed Incurred shall be equal to the greater of (x) the principal
of such Indebtedness and (y) the amount that may be drawn under such letter of
credit; and (vi) the amount of Indebtedness issued at a price less than the
amount of the liability thereof shall be determined in accordance with GAAP.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to:
(i) declare or pay any dividend, make any distribution on or in respect of
its Capital Stock or make any similar payment on or in respect of its
Capital Stock (including any payment in connection with any merger or
consolidation involving the Company or any Subsidiary of the Company)
to the direct or indirect holders of its Capital Stock, except (x)
dividends or distributions payable solely in its Capital Stock (other
than Disqualified Stock or
38
Preferred Stock) or in options, warrants or rights to purchase such
Capital Stock and (y) dividends or distributions payable to the
Company or a Restricted Subsidiary (and, if such Restricted Subsidiary
has shareholders other than the Company or other Restricted
Subsidiaries, to its other shareholders on a pro rata basis),
(ii) purchase, repurchase, redeem, retire or otherwise acquire for value
any Capital Stock of Holding, the Company or any Restricted Subsidiary
held by Persons other than the Company or a Restricted Subsidiary,
(iii)purchase, repurchase, redeem, retire, defease or otherwise acquire for
value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment any Subordinated Obligations, except a purchase,
repurchase, redemption, retirement, defeasance or acquisition within
one year of the final maturity thereof, or
(iv) make any Investment (other than a Permitted Investment) in any Person,
(any such dividend, distribution, payment, purchase, redemption,
repurchase, defeasance, retirement, or other acquisition or Investment
set forth in these clauses (i) through (iv) being herein referred to
as a "Restricted Payment") if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall be continuing (or would result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors,
whose determination shall be conclusive and delivered to the
Trustee and evidenced by a resolution of the Board of Directors)
declared or made subsequent to the Closing Date would exceed the
sum, without duplication, of:
(A) 50% of the sum of Consolidated Net Income and Consolidated
Step-Up Depreciation and Amortization accrued during the
period (treated as one accounting period) from the beginning
of the fiscal quarter in which the Closing Date occurs to
the end of the most recent fiscal quarter for which
financial statements are available (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of
such deficit);
39
(B) 100% of the aggregate Net Cash Proceeds and Fair Market
Value of property or assets (other than Indebtedness and
Capital Stock, except that Capital Stock of a Person that is
or becomes a Restricted Subsidiary shall be valued in
accordance with the Company's interest in the Fair Market
Value of such Person's property and assets, exclusive of
goodwill or any similar intangible asset) received by the
Company from the issue or sale of its Capital Stock (other
than Disqualified Stock) or from other capital contributions
subsequent to the Closing Date (other than an issuance or
sale (x) to a Subsidiary of the Company, (y) to an employee
stock ownership plan or other trust established by the
Company or any of its Subsidiaries with respect to amounts
funded or guaranteed by the Company or (z) in exchange for
the proceeds of loans or advances made pursuant to clause
(q) under the definition "Permitted Investment" in Section
1.01);
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance
sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Closing Date of
any Indebtedness of the Company or its Restricted
Subsidiaries issued after the Closing Date which is
convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the Company (less the amount of any
cash or the Fair Market Value of other property distributed
by the Company or any Restricted Subsidiary upon such
conversion or exchange);
(D) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (x) payments of
dividends, repayments of the principal of loans or advances
or other transfers of assets to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries or (y)
the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the
definition of "Investment" in Section 1.01);
(E) the net reduction in any Investment (other than a Permitted
Investment) that was made after the date of this Indenture
resulting from payments of dividends, repayments of the
principal of loans or advances or other transfers of assets
to the Company or any Restricted Subsidiary and the cash
return of capital with respect to any Investment (other than
a Permitted Investment); and
40
(F) any amount which previously qualified as a Restricted
Payment on account of any Guarantee entered into by the
Company or any Restricted Subsidiary; PROVIDED that such
Guarantee has not been called upon and the obligation
arising under such Guarantee no longer exists.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption, retirement or other
acquisition for value of Capital Stock of the Company made by
exchange for, or out of the proceeds of the sale within 30 days
of, Capital Stock of the Company (other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary of
the Company or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries with
respect to amounts funded or guaranteed by the Company);
PROVIDED, HOWEVER, that:
(1) such purchase, repurchase, redemption, retirement or other
acquisition for value shall be excluded in the calculation
of the amount of Restricted Payments, and
(2) the Net Cash Proceeds from such sale applied in the manner
set forth in this clause (i) shall be excluded from the
calculation of amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of
Subordinated Obligations of the Company made by exchange for, or
out of the proceeds of the sale within 30 days of, Subordinated
Obligations or Capital Stock (other than Disqualified Stock) of
the Company that is permitted to be Incurred pursuant to Section
4.03; PROVIDED, HOWEVER, that (1) such prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value shall be excluded in the calculation of the
amount of Restricted Payments; and (2) the Net Cash Proceeds from
such sale applied in the manner set forth in this clause (ii)
shall be excluded from the calculation of amounts under clause
(iv)(3)(B) of paragraph (a) above to the extent Capital Stock is
used in such prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for
value;
41
(iii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of
Subordinated Obligations from Net Available Cash to the extent
permitted by Section 4.06; PROVIDED, HOWEVER, that such
prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value shall be
excluded in the calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have
complied with this Section; PROVIDED, HOWEVER, that such
dividends shall be included in the calculation of the amount of
Restricted Payments;
(v) any payment of dividends, other distributions or other amounts by
the Company for the purposes set forth in clauses (1) through (3)
below; PROVIDED, HOWEVER, that such dividend, distribution or
other amount set forth in clauses (1) and (2) shall be excluded
and in clause (3) shall be included in the calculation of the
amount of Restricted Payments:
(1) to Holding in amounts equal to the amounts required for
Holding to pay franchise taxes and other fees required to
maintain its corporate existence and provide for other
operating costs of up to $1.0 million per fiscal year;
(2) to Holding in amounts equal to amounts required for Holding
to pay Federal, state, local and foreign income taxes to the
extent such income taxes are attributable to the income of
the Company and its Restricted Subsidiaries (and, to the
extent of amounts actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the
extent attributable to the income of such Unrestricted
Subsidiaries) or otherwise in accordance with the Tax
Sharing Agreement as in effect on the date of this
Indenture, as the same may be amended from time to time in a
manner not materially less favorable to the Holders of the
Notes;
(3) to Holding in amounts equal to amounts expended by Holding
to purchase, repurchase, redeem, retire or otherwise acquire
for value Capital Stock of Holding owned by employees,
former employees, directors or former directors, consultants
or foreign consultants of the Company or any of its
Subsidiaries (or permitted
42
transferees of such employees, former employees, directors
or former directors, consultants or foreign consultants);
PROVIDED, HOWEVER, that the aggregate amount paid, loaned or
advanced to Holding pursuant to this clause (3) shall not,
in the aggregate, exceed $2.5 million per fiscal year of the
Company, plus any amounts contributed by Holding to the
Company as a result of sales of shares of Capital Stock to
employees, directors and consultants, plus the net proceeds
of any key person life insurance received by the Company
after the date of this Indenture;
(vi) the repurchase of any Subordinated Obligation or Disqualified
Stock of the Company at a purchase price not greater than 101% of
the principal amount or liquidation preference of such
Subordinated Obligation or Disqualified Stock in the event of a
Change of Control pursuant to a provision similar to Section
4.08; PROVIDED that prior to consummating any such repurchase,
the Company has made the Change of Control Offer required by this
Indenture and has repurchased all Notes validly tendered for
payment in connection with such Change of Control Offer;
PROVIDED, HOWEVER, that such repurchase shall be included in the
calculation of the amount of Restricted Payments;
(vii) the repurchase of any Subordinated Obligation or Disqualified
Stock of the Company at a purchase price not greater than 100% of
the principal amount or liquidation preference of such
Subordinated Obligation or Disqualified Stock in the event of an
Asset Sale pursuant to a provision similar to Section 4.06;
PROVIDED that prior to consummating any such repurchase, the
Company has made the Asset Sale Offer required by this Indenture
and has repurchased all Notes validly tendered for payment in
connection with such Asset Sale Offer; PROVIDED, HOWEVER, that
such repurchase shall be included in the calculation of the
amount of Restricted Payments;
(viii) repurchases of Capital Stock deemed to occur upon exercise of
stock options to the extent that shares of such Capital Stock
represent a portion of the exercise price of such options;
PROVIDED, HOWEVER, that such repurchases shall be excluded in the
calculation of the amount of Restricted Payments;
(ix) the declaration and payment of dividends or distributions to
holders of any class or series of Disqualified Stock of the
Company or Preferred Stock of its Restricted Subsidiaries issued
or Incurred in accordance with Section 4.03; PROVIDED, HOWEVER,
that such declaration and payment of dividends or
43
distributions to holders shall be excluded in the calculation of
the amount of Restricted Payments;
(x) any of the transactions completed in connection with the
Acquisition and the financing thereof; PROVIDED, HOWEVER, that
such transactions shall be excluded in the calculation of the
amount of Restricted Payments;
(xi) any purchase, redemption, retirement or other acquisition for
value of Disqualified Stock of the Company made by exchange for,
or out of the proceeds of the sale within 30 days of,
Disqualified Stock of the Company; PROVIDED that any such new
Disqualified Stock is issued in accordance with Section 4.03(a)
and has an aggregate liquidation preference that does not exceed
the aggregate liquidation preference of the amount so refinanced;
PROVIDED, HOWEVER, such purchase, repurchase, redemption,
retirement or other acquisition for value shall be excluded in
the calculation of the amount of Restricted Payments; or
(xii) other Restricted Payments in an aggregate amount not to exceed
$15.0 million since the date of this Indenture; PROVIDED,
HOWEVER, that such other Restricted Payments shall be included in
the calculation of the amount of Restricted Payments.
The amount of all Restricted Payments (other than cash) shall be the Fair Market
Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair
Market Value of any assets or securities that are required to be valued by this
Section 4.04 shall be determined by the Board of Directors whose resolution with
respect thereto shall be conclusive and be delivered to the Trustee and
evidenced by a resolution of the Board of Directors.
SECTION 4.05. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or
pay any Indebtedness or other obligations owed to the Company;
(b) make any loans or advances to the Company; or
44
(c) transfer any of its property or assets to the Company, except, in the
case of clauses (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to
Indebtedness (including the Credit Agreement) as in effect or
entered into on the Closing Date, and any amendments,
modifications, restatements, renewals, extensions, replacements
and refinancings thereof on terms and conditions with respect to
such encumbrances and restrictions that are not materially more
restrictive, taken as a whole, than those encumbrances and
restrictions with respect to such Indebtedness as in effect on
the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary prior to the date on which
such Restricted Subsidiary was acquired by the Company (other
than Indebtedness Incurred as consideration in or in
contemplation of, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became
a Restricted Subsidiary or was otherwise acquired by the Company)
and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the
sale or other disposition of a Restricted Subsidiary or assets
that restrict distributions by that Restricted Subsidiary or
distributions of those assets pending the sale or other
disposition;
(v) any encumbrance or restriction existing by reason of provisions
with respect to the disposition or distribution of assets or
property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions
on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of
restrictions on the transfer of assets that are the subject of a
Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
45
(1) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is
subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the property subject
to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property
acquired in the ordinary course of business that imposes
restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue
of any transfer of, agreement to transfer, or option or right
with respect to any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of
Foreign Subsidiaries permitted pursuant to Section 4.03 or
industrial revenue or similar bonds Incurred by the Company or
any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other
debt instruments, facilities or arrangements that are not
materially more restrictive, taken as a whole, than those
contained in this Indenture governing the Notes or the Credit
Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and
not Incurred in contemplation thereof) with respect to any assets
or other property acquired by the Company or any Restricted
Subsidiary (including pursuant to the acquisition of the Capital
Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in
licenses related to, copyrighted or patented materials or other
intellectual property and customary provisions in agreements that
restrict the assignment of such agreements or any rights
thereunder or the use of any such rights;
46
(xiv) customary restrictions on real property interests set forth in
easements and similar arrangements of the Company or any
Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a
Receivables Facility or other contractual requirements of a
Receivables Facility permitted pursuant to Section 4.03; PROVIDED
that such restrictions apply only to such Receivables Facility;
and
(xvi) any encumbrance or restriction pursuant to (x) an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in Section 4.05(c)(i) through (xvi) or
contained in any amendment, modification or replacement to an
agreement referred to in Section 4.05(c)(i) through (xvi), in
each case as applicable; PROVIDED, HOWEVER, that the encumbrances
and restrictions contained in any such Refinancing agreement or
amendment, modification or replacement are no less favorable to
the Holders taken as a whole than the encumbrances and
restrictions contained in such predecessor agreements or (y) any
Credit Facility which is no less favorable to the Holders taken
as a whole than the encumbrances contained in the Credit
Agreement on the date of this Indenture.
SECTION 4.06. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless:
(i) the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming sole
responsibility for, any liabilities, contingent or otherwise) at the
time of such Asset Disposition at least equal to the Fair Market Value
of the shares and assets subject to such Asset Disposition,
(ii) at least 75% of the consideration thereof received by the Company or
such Restricted Subsidiary is in the form of cash or Cash Equivalents,
and
(iii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company (or such Restricted Subsidiary,
as the case may be)
(1) FIRST, to the extent the Company elects (or is required by the
terms of any Indebtedness), to prepay, repay, purchase,
repurchase, redeem, retire, defease or otherwise acquire for
value (A) Senior Indebtedness of the Company or Senior
47
Indebtedness (other than obligations in respect of Preferred
Stock) of a Restricted Subsidiary or (B) any Indebtedness of a
non-guarantor Restricted Subsidiary only if the assets sold were
of a non-guarantor Restricted Subsidiary (in each case other than
Indebtedness owed to the Company or an Affiliate of the Company
and other than obligations in respect of Disqualified Stock), in
each case, within 365 days after the later of the date of such
Asset Disposition or the receipt of such Net Available Cash;
(2) SECOND, to the extent of the balance of Net Available Cash after
application in accordance with clause (1), to the extent the
Company or such Restricted Subsidiary elects, to reinvest in
Additional Assets (including by means of an Investment in
Additional Assets by a Restricted Subsidiary with Net Available
Cash received by the Company or another Restricted Subsidiary)
within 365 days from the later of such Asset Disposition or the
receipt of such Net Available Cash or pursuant to arrangements in
place within the 365-day period;
(3) THIRD, to the extent of the balance of such Net Available Cash
after application in accordance with clauses (1) and (2), to make
an Offer (as defined in Section 4.06(b)) to purchase Notes
pursuant to and subject to the conditions set forth in Section
4.06(b); PROVIDED, HOWEVER, that if the Company elects (or is
required by the terms of any other Senior Subordinated
Indebtedness), such Offer may be made ratably to purchase the
Notes and other Senior Subordinated Indebtedness of the Company,
and
(4) FOURTH, to the extent of the balance of such Net Available Cash
after application in accordance with clauses (1), (2) and (3),
for any general corporate purpose not restricted by the terms of
this Indenture;
PROVIDED, HOWEVER that in connection with any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness pursuant to clause (1) above,
the Company or such Restricted Subsidiary will retire such
Indebtedness and will cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so
prepaid, repaid, purchased, repurchased, redeemed, retired, defeased
or otherwise acquired for value.
Pending the final application of the Net Available Cash, the Company
and its Restricted Subsidiaries may temporarily reduce revolving credit
borrowings or otherwise invest the Net Available Cash in any manner that is not
prohibited by this Indenture.
48
Notwithstanding the foregoing provisions of this Section 4.06, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section except to the extent that the
aggregate Net Available Cash from all Asset Dispositions that is not applied in
accordance with this Section exceeds $5.0 million.
For the purposes of this Section 4.06, the following are deemed to be
cash: (A) the assumption of Indebtedness of the Company (other than obligations
in respect of Disqualified Stock of the Company) or any Restricted Subsidiary
(other than obligations in respect of Disqualified Stock and Preferred Stock of
a Restricted Subsidiary that is Note Guarantor) and the release of the Company
or such Restricted Subsidiary from all liability on such Indebtedness in
connection with such Asset Disposition; (B) any Designated Noncash Consideration
received by the Company or any of its Restricted Subsidiaries in the Asset
Disposition; and (C) securities or other obligations received by the Company or
any Restricted Subsidiary from the transferee that are (subject to ordinary
settlement periods) converted, sold or exchanged within 30 days of receipt by
the Company or such Restricted Subsidiary into cash (to the extent of the cash
received in that conversion, sale or exchange).
In the case of an Asset Swap constituting part of an Asset
Disposition, the Company or any such Restricted Subsidiary shall only be
required to receive cash in an amount equal to at least 75% of the proceeds of
the Asset Disposition which are not received in connection with the Asset Swap.
(b) In the event of an Asset Disposition that requires the purchase of
Notes pursuant to Section 4.06(a)(iii)(3), the Company shall be required (i) to
purchase Notes tendered pursuant to an offer by the Company for the Notes (the
"Offer") at a purchase price of 100% of their principal amount plus accrued and
unpaid interest and Additional Interest thereon, if any, to, but not including,
the date of purchase (subject to the right of Holders of record on the relevant
date to receive interest due on the relevant interest payment date) in
accordance with the procedures (including prorating in the event of
oversubscription), set forth in this Indenture and (ii) to purchase other Senior
Subordinated Indebtedness of the Company on the terms and to the extent
contemplated thereby (provided that in no event shall the Company offer to
purchase such other Senior Subordinated Indebtedness of the Company at a
purchase price in excess of 100% of its principal amount, plus accrued and
unpaid interest thereon). If the aggregate purchase price of Notes (and other
Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than
the Net Available Cash allotted to the purchase of the Notes (and other Senior
Subordinated Indebtedness), the Company shall apply the remaining Net Available
Cash in accordance with Section 4.06(a)(iii)(4). The Company shall not be
required to make an Offer for Notes (and other Senior Subordinated Indebtedness)
pursuant to this Section 4.06 if the Net Available Cash available therefor
(after application of the proceeds as provided in clauses (1) and (2) of Section
4.06(a)(iii)) is less than $5.0 million for any particular Asset
49
Disposition (which lesser amount will be carried forward for purposes of
determining whether an Offer is required with respect to the Net Available Cash
from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Notes purchased by the Company
either in whole or in part (subject to prorating as hereinafter described in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the business
of the Company which the Company in good faith believes will enable such Holders
to make an informed decision (which at a minimum shall include (1) the most
recently filed Annual Report on Form 10-K (including audited consolidated
financial statements) of the Company, the most recent subsequently filed
Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company
filed subsequent to such Quarterly Report, other than Current Reports describing
Asset Dispositions otherwise described in the offering materials (or
corresponding successor reports), (2) a description of material developments in
the Company's business subsequent to the date of the latest of such reports, and
(3) if material, appropriate pro forma financial information) and all
instructions and materials necessary to tender Notes pursuant to the Offer,
together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Company shall deliver to the
Trustee an Officers' Certificate as to (1) the amount of the Offer (the "Offer
Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for cancelation the
Notes or portions thereof that have been properly tendered to and are to be
accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the Offer Amount
delivered by the Company to the Trustee is greater than the purchase price of
the Notes (and other Senior Subordinated Indebtedness) tendered, the Trustee
shall deliver the excess to the Company immediately after the expiration of the
Offer Period for application in accordance with this Section 4.06.
50
(iii) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
Purchase Date. Holders shall be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
Purchase Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered by
the Holder for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased. If at the expiration of the Offer Period
the aggregate principal amount of Notes and any other Senior Subordinated
Indebtedness included in the Offer surrendered by holders thereof exceeds the
Offer Amount, the Company shall select the Notes and other Senior Subordinated
Indebtedness to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company so that only Notes and other Senior
Subordinated Indebtedness in denominations of $1,000, or integral multiples
thereof, shall be purchased). Holders whose Notes are purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered.
(iv) At the time the Company delivers Notes to the Trustee which are
to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Notes are to be accepted by the Company pursuant
to and in accordance with the terms of this Section. A Note shall be deemed to
have been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder.
(v) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.07. LIMITATION ON TRANSACTIONS WITH AFFILIATES. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Company (an "Affiliate
Transaction") unless such transaction is on terms:
(i) that are no less favorable, taken as a whole, to the Company or such
Restricted Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with
a Person who is not such an Affiliate,
51
(ii) that, in the event such Affiliate Transaction involves an aggregate
amount in excess of $5.0 million,
(1) are set forth in writing, and
(2) have been approved in good faith by a majority of the members of
the Board of Directors and,
(iii) that, in the event such Affiliate Transaction involves an aggregate
amount in excess of $20.0 million,
(1) are set forth in writing, and
(2) have either (x) been approved in good faith by a majority of the
members of the Board of Directors or (y) have been determined by
a recognized appraisal or investment banking firm to be fair,
from a financial standpoint, to the Company and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit or restrict:
(i) any Restricted Payment or Investment permitted to be made pursuant to
Section 4.04,
(ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors,
(iii) the grant of stock options or similar rights to employees, directors
and consultants of the Company pursuant to plans approved by the Board
of Directors,
(iv) loans or advances to employees in the ordinary course of business (or
guarantees in respect thereof or otherwise made on their behalf
(including payment on any such guarantees)), but in any event not to
exceed $3.0 million in the aggregate outstanding at any one time, plus
any amounts loaned pursuant to clause (q) under the definition of
"Permitted Investment" in Section 1.01,
(v) the payment of reasonable fees paid to, and indemnity provided on
behalf of, officers, directors, employees or consultants of the
Company and its Subsidiaries,
52
(vi) any transaction between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries,
(vii) any transaction effected in connection with a Receivables Facility
permitted under Section 4.03,
(viii) any redemption of Capital Stock held by current or former employees,
directors or consultants upon death, disability or termination of
employment at a price not in excess of the Fair Market Value thereof
or pursuant to the terms of any agreement entered into in accordance
with this Indenture with such Person,
(ix) sales or issuances of Capital Stock (other than Disqualified Stock) to
Affiliates of the Company,
(x) transactions involving the Company or any of its Restricted
Subsidiaries, on the one hand, and JPMorgan Securities Inc. or
Xxxxxxx, Xxxxx & Co. or any of their respective Affiliates, on the
other hand, in connection with the Acquisition and transactions
related thereto, Bank Indebtedness and any amendment, modification,
supplement, extension, refinancing, replacement, work-out,
restructuring and other transactions related thereto, or any
management, financial advisory, financing, underwriting or placement
services or any other investment banking, banking or similar services,
which payments are approved by a majority of the Board of Directors in
good faith,
(xi) transactions pursuant to the Stockholders' Agreement as in effect on
the date of this Indenture as the same may be amended from time to
time in any manner not materially less favorable taken as a whole to
the Holders of the Notes,
(xii) transactions pursuant to any agreement disclosed in the Offering
Memorandum, including any agreement entered into in connection with
the Acquisition, as in effect on the date of this Indenture as the
same may be amended from time to time in any manner not materially
less favorable taken as a whole to the Holders of the Notes,
(xiii) any employment, compensation or indemnification agreements entered
into by the Company or any of its Restricted Subsidiaries, in the
ordinary course of business with employees, directors, or consultants,
or
(xiv) sales of inventory or other product to any Affiliate in the ordinary
course of business.
53
SECTION 4.08. CHANGE OF CONTROL. (a) Upon the occurrence of a Change
of Control, each Holder shall have the right to require the Company to purchase
all or any part of such Holder's Notes at a purchase price in cash equal to 101%
of the principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the date of purchase (subject to the
right of Holders of record on the relevant record date to receive interest,
including Additional Interest, if any, due on the relevant interest payment
date); PROVIDED, HOWEVER, that notwithstanding the occurrence of a Change of
Control, the Company shall not be obligated to purchase the Notes pursuant to
this Section 4.08 in the event that it has mailed the notice to exercise its
right to redeem all the Notes under the terms of paragraph 5 of the Notes at any
time prior to the requirement to consummate the Change of Control and redeem the
Notes in accordance with such notice. In the event that at the time of such
Change of Control the terms of the Bank Indebtedness restrict or prohibit the
repurchase of Notes pursuant to this Section 4.08, then prior to the mailing of
the notice to Holders provided for in Section 4.08(b) below but in any event
within 30 days following any Change of Control, the Company shall (i) repay in
full all Bank Indebtedness or, if doing so will allow the purchase of Notes,
offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of
each lender who has accepted such offer, or (ii) obtain the requisite consent
under the agreements governing the Bank Indebtedness to permit the repurchase of
the Notes as provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control, or, at the
Company's option, prior to such Change of Control but after it is publicly
announced, the Company shall mail a notice to each Holder with a copy to the
Trustee (the "Change of Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase all or a portion of
such Holder's Notes at a purchase price in cash equal to 101% of
the principal amount thereof, plus accrued and unpaid interest
and Additional Interest, if any, to, but not including, the date
of purchase (subject to the right of Holders of record on the
relevant record date to receive interest, including Additional
Interest, if any, on the relevant interest payment date);
(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than the greater of
(x) 30 days and (y) the Change of Control date and no later than
60 days from the date such notice is mailed);
54
(iv) that the Change of Control Offer is conditioned on the Change of
Control occurring if the notice is mailed prior to a Change of
Control; and
(v) the instructions determined by the Company, consistent with this
Section, that a Holder must follow in order to have its Notes
purchased.
(c) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Note purchased. Holders whose Notes are purchased only in
part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
(d) On the purchase date, all Notes purchased by the Company under
this Section shall be delivered to the Trustee for cancelation, and the Company
shall pay the purchase price plus accrued and unpaid interest and Additional
Interest, if any, to the Holders entitled thereto.
(e) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
(f) At the time the Company delivers Notes to the Trustee which are to
be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Notes are to be accepted by the Company pursuant
to and in accordance with the terms of this Section 4.08. A Note shall be deemed
to have been accepted for purchase at the time the Trustee, directly or through
an agent, mails or delivers payment therefor to the surrendering Holder.
(g) Prior to any Change of Control Offer, the Company shall deliver to
the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of the Company to make such offer have been
complied with.
(h) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
55
laws or regulations in connection with the purchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.09. COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA to the extent required.
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. FUTURE NOTE GUARANTORS AND RELEASE OF NOTE GUARANTORS.
(a) The Company shall cause (1) each Domestic Subsidiary, other than a Domestic
Subsidiary the only activity of which is to participate in a Receivables
Facility, and (2) each Foreign Subsidiary that enters into a Guarantee of any
Senior Indebtedness (other than a Foreign Subsidiary that Guarantees Senior
Indebtedness Incurred by another Foreign Subsidiary), to become a Note
Guarantor, and if applicable, execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit C pursuant to which such Subsidiary shall
Guarantee payment of the Notes; PROVIDED that this Section shall not apply to
any Subsidiary that has been properly designated as an Unrestricted Subsidiary
in accordance with this Indenture. Each Note Guarantee shall be limited to an
amount not to exceed the maximum amount that can be Guaranteed by that Note
Guarantor, without rendering the Note Guarantee, as it relates to such Note
Guarantor voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
(b) The Note Guarantee of a Note Guarantor shall be released: (1) in
connection with any sale or other disposition of all or substantially all of the
assets of that Note Guarantor (including by way of merger or consolidation) to a
Person that is not (either before or after giving effect to such transaction) a
Subsidiary of the Company, if the sale or other disposition complies with
Section 4.06; (2) in connection with any sale of Capital Stock of a Note
Guarantor to a Person that is not (either before or after giving effect to such
transaction) a Subsidiary of the Company, if the sale complies with Section
4.06; (3) if the Company designates any Restricted Subsidiary that is a Note
Guarantor as an Unrestricted Subsidiary in accordance with the applicable
provisions of
56
this Indenture; or (4) if the Note Guarantor participates in a Receivables
Facility and such participation is such Note Guarantor's only on-going activity.
SECTION 4.12. TRUSTEE HAS NO OBLIGATION TO MONITOR. Notwithstanding
anything to the contrary, but subject to Article 7 hereof, the Trustee has no
obligation or duty to monitor, determine or inquire as to compliance with any of
the covenants in this Article or in Article 5 hereof.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. (a) WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets, in one or more related transactions,
to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation, limited liability company, trust,
partnership or similar entity organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and the Successor Company (if not the Company) shall
expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all the obligations of the Company under the Notes and this
Indenture; PROVIDED that if the Successor Company is not a
corporation, the Notes will also be assumed by a corporate co-obligor;
(ii) immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or
any Restricted Subsidiary as a result of such transaction as having
been Incurred by the Successor Company or such Restricted Subsidiary
at the time of such transaction), no Default shall have occurred and
be continuing;
(iii) immediately after giving effect to such transaction, the Successor
Company would be able to Incur an additional $1.00 of Indebtedness
pursuant to Section 4.03(a); and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, but the
predecessor Company in the case of a lease of all or substantially all its
assets shall not be released from the obligation to pay the principal of and
interest on the Notes.
57
(b) In addition, the Company shall not permit any Note Guarantor to
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless:
(i) the resulting, surviving or transferee Person (the "Successor
Guarantor") will be a corporation, limited liability company, trust,
partnership or similar entity organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia, and such Person (if not such Note Guarantor) shall expressly
assume, by a supplemental indenture, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all the
obligations of such Note Guarantor under its Note Guarantee;
(ii) immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Guarantor or
any Restricted Subsidiary as a result of such transaction as having
been Incurred by the Successor Guarantor or such Restricted Subsidiary
at the time of such transaction), no Default shall have occurred and
be continuing; and
(iii) 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.
(c) Notwithstanding the foregoing: (i) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Restricted Subsidiary and (ii) the Company may
merge with an Affiliate incorporated solely for the purpose of reincorporating
the Company in another jurisdiction to realize tax or other benefits.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
58
(a) the Company defaults in any payment of interest on any Note when the
same becomes due and payable or in any payment of Additional Interest,
whether or not such payment shall be prohibited by Article 10, and
such default continues for a period of 30 days;
(b) the Company defaults in the payment of the principal of any Note when
the same becomes due and payable at its Stated Maturity, upon required
redemption or repurchase, upon declaration or otherwise, whether or
not such payment shall be prohibited by Article 10;
(c) the Company fails to comply with its obligations under Section 5.01,
(d) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06,
4.07, 4.08 or 4.11 (other than a failure to purchase Notes when
required under any such Section) and such failure continues for 60
days after the notice specified below;
(e) the Company or any Restricted Subsidiary fails to comply with any of
its agreements in the Notes or this Indenture (other than those
referred to in (a), (b), (c) or (d) above) and such failure continues
for 60 days after the notice specified below;
(f) Indebtedness of the Company or any Subsidiary is not paid within any
applicable grace period after final maturity or the acceleration by
the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $20.0 million or its
foreign currency equivalent at the time and such failure continues for
10 days after the notice specified below;
(g) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
59
(h) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(i) any judgment or decree for the payment of money in excess of $20.0
million or its foreign currency equivalent (net of any amounts covered
by insurance) against the Company or any Significant Subsidiary and
there is a period of 60 days following the entry of such judgment or
decree during which such judgment or decree is not discharged, waived
or the execution thereof stayed; or
(j) any Note Guarantee of a Significant Subsidiary ceases to be in full
force and effect (except as contemplated by the terms thereof) or any
Significant Subsidiary Note Guarantor or Person acting by or on behalf
of such Significant Subsidiary Note Guarantor denies or disaffirms
such Significant Subsidiary Note Guarantor's obligations under this
Indenture or any Significant Subsidiary Note Guarantee and such
Default continues for 10 days after receipt of the notice specified in
this Indenture.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, XXXXXX XXXXXX CODE, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (d), (e), (f) or (j) above is not an Event of
Default until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Notes notify the Company
60
and the Trustee of the Default and the Company or the Note Guarantor, as
applicable, does not cure such Default within the time specified after receipt
of such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto. Except for monitoring payment
of scheduled interest or principal on any Note, subject to Article 7 hereof, the
Trustee shall have no obligation or duty to monitor, determine or inquire as to
the occurrence of a Default or an Event of Default.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the outstanding Notes by notice
to the Company and the Trustee, may declare the principal of and accrued but
unpaid interest on all the Notes to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(g) or (h) with respect to the Company occurs,
the principal of and interest on all the Notes shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. The Holders of a majority in principal amount of the
Notes by notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
principal amount of the Notes by notice to the Trustee may
61
waive an existing Default and its consequences except (a) a Default in the
payment of the principal of or interest on a Note, (b) a Default arising from
the failure to redeem or purchase any Note when required pursuant to the terms
of this Indenture or (c) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Holder affected. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
PROVIDED, HOWEVER, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. LIMITATION ON SUITS. (a) Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
may pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the Notes make
a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable security
or indemnity 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 of security or indemnity; and
(v) the Holders of a majority in principal amount of the Notes do not
give the Trustee a direction inconsistent with the request during such
60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and Additional Interest and
62
interest on the Notes held by such Holder, on or after the respective due dates
expressed or provided for in the Notes, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount then due and
owing (together with interest on overdue principal and (to the extent lawful) on
any unpaid interest at the rate provided for in the Notes) and the amounts
provided for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company, any Subsidiary or Note
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company to the extent
required by Article 10 and to holders of Senior Indebtedness of the Note
Guarantors to the extent required by Article 12;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal, interest and Additional Interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, interest and any Additional Interest,
respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such
63
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Notes.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. Neither the Company
nor any Note Guarantor (to the extent it may lawfully do so) shall at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company and each Note Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements
64
of this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee
65
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the Notes at the time
outstanding, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest, it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as trustee or resign. Any
Paying Agent or Registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Note Guarantee or the Notes, it shall not be accountable for
the Company's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company or any Note Guarantor in this
Indenture or in any document issued in connection with the sale of the Notes or
in the Notes other than the Trustee's certificate of authentication. The Trustee
shall not be charged with knowledge of any Default or Event of Default under
Sections 6.01(c), (d), (e), (f), (g), (h), (i) or (j) or of the identity of any
Significant Subsidiary unless either (a) a Trust Officer shall have actual
knowledge thereof (and that such constitutes a Default or Event of Default
hereunder) or (b) the
66
Trustee shall have received notice thereof (and such notice specifies that such
constitutes a Default or Event of Default hereunder) in accordance with Section
13.02 hereof from the Company, any Note Guarantor or any Holder.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and is known to the Trustee, the Trustee must mail to each Holder
notice of the Default within the earlier of 90 days after it occurs or 30 days
after it is known to a Trust Officer or written notice of it is received by the
Trustee. Except in the case of a Default in the payment of principal of, premium
(if any) or interest on any Note (including payments pursuant to the redemption
provisions of such Note), the Trustee may withhold notice if and so long as a
committee of its Trust Officers in good faith determines that withholding notice
is in the interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As promptly as
practicable after each July 15 beginning with the July 15 following the date of
this Indenture, and in any event prior to September 15 in each year, the Trustee
shall mail to each Holder a brief report dated as of such July 15 that complies
with Section 313(a) of the TIA if and to the extent required thereby. The
Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time such compensation for its services as the Trustee and
the Company shall agree from time to time. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services, except any such expense as may
arise from its negligence, wilful misconduct or bad faith. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Trustee shall
provide the Company reasonable notice of any expenditure not in the ordinary
course of business. The Company and each Note Guarantor, jointly and severally
shall indemnify the Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by or in connection with the
administration of this trust and the performance of its duties hereunder, except
as provided in the last sentence of this paragraph. The Trustee shall notify the
Company of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; PROVIDED, HOWEVER, that any failure to notify the
Company shall not relieve the Company or any Note Guarantor of its indemnity
obligations hereunder. The Company shall defend
67
the claim and the Trustee shall provide reasonable cooperation at the Company's
expense in the defense. The Trustee may have separate counsel and the Company
and the Note Guarantors, as applicable, shall pay the reasonable fees and
expenses of such counsel; PROVIDED, HOWEVER, that the Company shall not be
required to pay such fees and expenses if it assumes Trustee's defense, and, in
Trustee's reasonable judgment, there is no conflict of interest between the
Company and the Note Guarantors, as applicable, and the Trustee in connection
with such defense. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through its own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest and Additional Interest, if any, on particular Notes.
The Company's payment obligations pursuant to this Section shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee. Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(g) or (h) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE. (a) The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Notes may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee
or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists
68
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA, any
Holder who has been a bona fide holder of a Note for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the TIA. The
69
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with Section 310(b) of the TIA, subject to its right to apply for a
stay of its duty to resign under the penultimate paragraph of Section 310(b) of
the TIA; PROVIDED, HOWEVER, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE. (a) When
(i) either (1) all outstanding Notes (other than Notes replaced or paid pursuant
to Section 2.08) have been canceled or delivered to the Trustee for cancelation;
or (2) all outstanding Notes have become due and payable, whether at maturity or
as a result of the mailing of a notice of redemption pursuant to Article 3
hereof, or otherwise will become due and payable within one year and the Company
or any Note Guarantor irrevocably deposits with the Trustee funds in an amount
sufficient or U.S. Government Obligations, the principal of and interest on
which will be sufficient, or a combination thereof sufficient, in the written
opinion of a nationally recognized firm of independent public accountants or
reputable investment banking firm delivered to the Trustee (which delivery shall
only be required if U.S. Government Obligations have been so deposited), to pay
the principal of and interest and Additional Interest, if any, on the
outstanding Notes when due at maturity or upon redemption thereof, including
interest thereon to maturity or such redemption date (other than Notes replaced
or paid pursuant to Section 2.08) and Additional Interest, if any, (ii) no
Default or Event of Default has occurred and is continuing on the date of the
deposit; (iii) the Company or any Note Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and (iv) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the
deposited money toward the payment of the Notes at maturity or the redemption
date, as the case may be, then this Indenture shall, subject to Section 8.01(c),
cease to be of further effect.
70
In the case of clause (2) above, the Company must deliver an Officers'
Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all of its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08 and 4.11 and the operation of Section 5.01 (a)(ii),
5.01(a)(iii), 5.01(a)(iv), 5.01(b)(iii), 6.01(d), 6.01(e), 6.01(f), 6.01(g)
(with respect to Significant Subsidiaries of the Company only), 6.01(h) (with
respect to Significant Subsidiaries of the Company only) and 6.01(i) ("covenant
defeasance option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. If the
Company discharges its liability on the Notes or exercises its legal defeasance
option or its covenant defeasance option, each Guarantor shall be released from
all its obligations under the Note Guarantees and the obligations under the Note
Guarantees shall each be terminated simultaneously with the termination of such
obligations.
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.01(c),
6.01(d), 6.01(e), 6.01(f), 6.01(g) (with respect to Significant Subsidiaries
only), 6.01(h) (with respect to Significant Subsidiaries only) or 6.01(i) or
because of the failure of the Company to comply with clauses (ii), (iii) and
(iv) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article 8 shall survive until the Notes have been paid in full. Thereafter,
the Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive.
SECTION 8.02. (a) CONDITIONS TO DEFEASANCE. The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee money
in an amount sufficient or U.S. Government Obligations, the principal of
and interest on which will be sufficient, or a combination thereof
sufficient, to pay the principal of, and premium (if any), interest and
Additional Interest (if any), on the Notes when due at maturity or
redemption, as the case may be, including interest thereon to maturity or
such redemption date;
71
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants or a reputable
investment banking firm expressing their opinion that the payments of
principal and interest when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited money without interest will
provide cash at such times and in such amounts as will be sufficient to pay
principal, premium, if any, interest and Additional Interest, if any, when
due on all the Notes to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(v) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified or is exempt as, a regulated investment company under the
Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (1) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (2) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such deposit and
defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred; and
(viii) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Notes as contemplated by this Article 8
have been complied with.
72
(b) Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest and Additional Interest, if any, on the
Notes. Money and securities so held in trust are not subject to Article 10 or
12.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
or reputable investment banking firm delivered to the Trustee (which delivery
shall only be required if U.S. Government Obligations have been so deposited),
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal, interest or Additional Interest that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company for payment as general creditors, and the Trustee and the
Paying Agent shall have no further liability with respect to such monies.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 8 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 8; PROVIDED, HOWEVER, that, if the Company has made
any payment of principal of or
73
interest or Additional Interest on, any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. (a) WITHOUT CONSENT OF HOLDERS. The Company, the Note
Guarantors and the Trustee may amend this Indenture, the Notes or the Note
Guarantees without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Section 4.11 or Article 5;
(iii) to provide for uncertificated Notes in addition to or in place
of certificated Notes; PROVIDED, HOWEVER, that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in
a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(iv) to make any change in Article 10 or 12 that would limit or
terminate the benefits available to any holder of Senior Indebtedness of
the Company or a Note Guarantor (or any Representative thereof) under
Article 10 or 12 respectively;
(v) to add additional Guarantees with respect to the Notes or to
secure the Notes;
(vi) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA;
(vii) to add to the covenants of the Company or provide any additional
rights or benefits to the Holders or to surrender any right or power
conferred upon the Company;
(viii) to make any change that does not adversely affect the rights of
any Holder;
(ix) to provide for the issuance of the Exchange Notes or Additional
Notes, which shall have terms substantially identical in all material
respects to the Original Notes (except that the transfer
74
restrictions contained in the Original Notes shall be modified or
eliminated, as appropriate), and which shall be treated, together with any
outstanding Original Notes, as a single issue of securities;
(x) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture.
(b) An amendment under this Section 9.01 may not make any change to
Article 10 or Article 12 that adversely affects the rights of any holder of
Senior Indebtedness of the Company or a Note Guarantor then outstanding unless
the holders of such Senior Indebtedness (or any group or Representative thereof
authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective,the
Company shall mail to Holders a notice briefly describing such amendment.
However, the failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS. (a) The Company, the Note
Guarantors and the Trustee may amend this Indenture or the Notes without notice
to any Holder but with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding (including consents obtained
in connection with a tender offer or exchange for the Notes). However, without
the consent of each Holder affected, an amendment may not:
(i) reduce the amount of Notes whose Holders must consent to an
amendment;
(ii) reduce the rate of or extend the time for payment of interest,
including Additional Interest, if any, on any Note;
(iii) reduce the principal of or extend the Stated Maturity of any
Note;
(iv) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3;
(v) make any Note payable in money other than that stated in the Note;
(vi) make any change in Article 10 or Article 12 that adversely
affects the rights of any Holder under Article 10 or Article 12;
(vii) impair the right of any Holder to receive payment of principal
of, and interest, including Additional Interest, if any, on, such
75
Holder's Notes on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such Holder's Notes,
(viii) make any change in Section 6.04 or 6.07 or the second sentence
of this Section 9.02; or
(ix) release the Note Guarantees, other than in accordance with
Section 11.07, or modify the Note Guarantees in any manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change to
Article 10 or Article 12 that adversely affects the rights of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. (a) A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers' Certificate from the Company certifying that the
requisite number of consents have been received. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of the requisite
number of consents, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and any indenture supplemental hereto containing such
amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Company and the Trustee.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their
76
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company and the Note
Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
77
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. The Company agrees, and each
Holder by accepting a Note agrees, that the Indebtedness evidenced by the Notes
is subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full of all existing and future Senior
Indebtedness of the Company and that the subordination is for the benefit of and
enforceable by the holders of such Senior Indebtedness. The Notes shall in all
respects rank equally in right of payment with any existing and future Senior
Subordinated Indebtedness of the Company and shall be senior in right of payment
to all future Subordinated Obligations of the Company. The Notes also shall be
effectively subordinated to all Secured Indebtedness of the Company and its
Subsidiaries to the extent of the value of the assets securing such
Indebtedness. However, payment from the money or the proceeds of U.S. Government
Obligations held in any trust described in Article 8 will not be subordinated to
any Senior Indebtedness or subject to the restrictions described herein. For
purposes of this Article 10, the Indebtedness evidenced by the Notes shall be
deemed to include any Additional Interest payable pursuant to the provisions set
forth in the Notes and the Registration Rights Agreement. All provisions of this
Article 10 shall be subject to Section 10.12.
Only Indebtedness of the Company that is Senior Indebtedness will rank
senior to the Notes. The Notes will rank equally in all respects with all other
Senior Subordinated Indebtedness of the Company. The Company will not Incur,
directly or indirectly, any Indebtedness which is subordinate in right of
payment to Senior Indebtedness unless such Indebtedness is Senior Subordinated
Indebtedness or is expressly subordinated in right of payment to Senior
Subordinated Indebtedness. Unsecured Indebtedness shall not be deemed to be
subordinate or junior in right of payment to Secured Indebtedness merely because
it is unsecured and Indebtedness which has different security or different
priorities in the same security will not be deemed subordinate in right of
payment to Secured Indebtedness due to such differences.
SECTION 10.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
or distribution of the assets of the Company to creditors upon a total or
partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property (except that Holders of Notes may
receive and retain Permitted Junior Securities and payments made from the trust
described under Article 8):
(a) the holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full of such Senior Indebtedness
before the Holders are entitled to receive any payment of
principal of or interest on the Notes; and
78
(b) until such Senior Indebtedness is paid in full any payment or
distribution to which Holders would be entitled but for the
subordination provisions of this Indenture shall be made to
holders of such Senior Indebtedness as their interests may
appear.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not pay
principal of, premium (if any) or interest on the Notes, or make any further
deposit pursuant to Section 8.01, and may not otherwise purchase, repurchase,
redeem or otherwise acquire or retire for value any Notes (collectively, "pay
the Notes") (except in Permitted Junior Securities or except from a previously
created trust under Article 8) if:
(a) any Designated Senior Indebtedness of the Company is not paid
when due, whether upon acceleration or otherwise, or
(b) any other default on Designated Senior Indebtedness of the
Company occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms
unless, in either case,
(x) the default has been cured or waived and any such acceleration
has been rescinded, or
(y) such Designated Senior Indebtedness has been paid in full;
PROVIDED, HOWEVER, that the Company may pay the Notes without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative of the Designated Senior Indebtedness with
respect to which either of the events set forth in clause (a) or (b) of this
sentence has occurred and is continuing.
In addition, during the continuance of any default (other than a
default described in clause (a) or (b) of the immediately preceding paragraph)
with respect to any Designated Senior Indebtedness of the Company pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the Notes
(except in Permitted Junior Securities or except from a previously created trust
under Article 8) for a period (a "Payment Blockage Period") commencing upon the
receipt by the Trustee (with a copy to the Company) of written notice (a
"Blockage Notice") of such default from the Representative of such Designated
Senior Indebtedness specifying an election to effect a Payment Blockage Period
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated:
79
(a) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice,
(b) by repayment in full of such Designated Senior Indebtedness, or
(c) because the default giving rise to such Blockage Notice is no
longer continuing).
Subject to Article 7 hereof, if the Trustee receives a Blockage Notice
from a Representative of such Designated Senior Indebtedness, the Trustee can
conclusively rely as to the occurrence of clauses (b) and (c) of the preceding
paragraph upon notice from such Representative.
Notwithstanding the provisions described in the immediately preceding paragraph
(but subject to the provisions contained in the second preceding and in the
immediately succeeding paragraph), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders have accelerated the maturity
of such Designated Senior Indebtedness, the Company may resume payments on the
Notes after the end of such Payment Blockage Period, including any missed
payments.
Not more than one Blockage Notice may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness during such period; PROVIDED HOWEVER, that if any
Blockage Notice within such 360-day period is given by or on behalf of any
holders of Designated Senior Indebtedness other than the Bank Indebtedness, the
Representative of the Bank Indebtedness may give another Blockage Notice within
such period; PROVIDED, FURTHER, HOWEVER, that in no event may the total number
of days during which any Payment Blockage Period or Periods (including any
periods in respect of any additional Blockage Notices delivered by the
Representative pursuant to the prior sentence) is in effect exceed 179 days in
the aggregate during any 360 consecutive day period. For purposes of this
Section, no default or event of default that existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Designated Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
SECTION 10.04. ACCELERATION OF PAYMENT OF NOTES. If payment of the
Notes is accelerated because of an Event of Default, the Company shall promptly
notify the holders of the Designated Senior Indebtedness of the Company (or
their Representative) of the acceleration. If any Designated Senior Indebtedness
of the Company is outstanding, the Company may not pay the Notes until five
Business Days after such holders or the Representative
80
of such Designated Senior Indebtedness receive notice of such acceleration and,
thereafter, may pay the Notes only if this Article 10 otherwise permits payment
at that time.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution
is made to Holders that because of this Article 10 should not have been made to
them, the Holders who receive the distribution shall hold it in trust for
holders of Senior Indebtedness of the Company and pay it over to them as their
interests may appear.
SECTION 10.06. SUBROGATION. After all Senior Indebtedness of the
Company is paid in full and until the Notes are paid in full, Holders shall be
subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article 10 to holders of such Senior Indebtedness which otherwise would have
been made to Holders is not, as between the Company and Holders, a payment by
the Company on such Senior Indebtedness.
SECTION 10.07. RELATIVE RIGHTS. This Article 10 defines the relative
rights of Holders and holders of Senior Indebtedness of the Company. Nothing in
this Indenture shall:
(a) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of and
interest and Additional Interest, if any, on the Notes in accordance with
their terms; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior
Indebtedness of the Company to receive distributions otherwise payable to
Holders.
SECTION 10.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right
of any holder of Senior Indebtedness of the Company to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 10.09. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 10.03, the Trustee or Paying Agent may continue to make payments on the
Notes and shall not be charged with knowledge of the existence of facts that
would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it in its sole discretion that payments may not
be made under this Article 10. The Company, the Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of the Company may give the
notice; PROVIDED, HOWEVER, that, if an issue of Senior Indebtedness of the
Company has a Representative, only the Representative may give the notice.
81
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee. The Registrar and the Paying Agent may do the same with like rights.
The Trustee shall be entitled to all the rights set forth in this Article 10
with respect to any Senior Indebtedness of the Company which may at any time be
held by it, to the same extent as any other holder of such Senior Indebtedness;
and nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07 or any other Section of this
Indenture.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE. The failure to make a payment pursuant to the Notes by
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect on
the right of the Holders or the Trustee to accelerate the maturity of the Notes.
SECTION 10.12. TRUST MONIES NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article 8 by the Trustee for the
payment of principal of and interest and Additional Interest, if any, on the
Notes shall not be subordinated to the prior payment of any Senior Indebtedness
of the Company or subject to the restrictions set forth in this Article 10, and
none of the Holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
SECTION 10.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to conclusively rely (a) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 10.02 are pending, (b) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or
82
distribution pursuant to this Article 10, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 10, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 10.
SECTION 10.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
accepting a Note authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of the
Company as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. Notwithstanding anything that may be interpreted to the contrary,
the Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness of the Company and shall not be liable to any such holders
if it shall mistakenly pay over or distribute to Holders or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Notes, to acquire and continue to hold, or to continue
to hold, such Senior Indebtedness and such holder of such Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness.
ARTICLE 11
NOTE GUARANTEES
83
SECTION 11.01. (a) NOTE GUARANTEES. Each Note Guarantor hereby jointly
and severally irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, to each Holder and to the Trustee and its successors
and assigns (i) the full and punctual payment when due, whether at Stated
Maturity, by acceleration, by redemption or otherwise, of all obligations of the
Company under this Indenture (including obligations to the Trustee) and the
Notes, whether for payment of principal of, interest on or Additional Interest,
if any, in respect of the Notes and all other monetary obligations of the
Company under this Indenture and the Notes and (ii) the full and punctual
performance within applicable grace periods of all other obligations of the
Company whether for fees, expenses, indemnification or otherwise under this
Indenture and the Notes (all the foregoing being hereinafter collectively called
the "Guaranteed Obligations"). Each Note Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice or further assent from each such Note Guarantor, and that each such Note
Guarantor shall remain bound under this Article 11 notwithstanding any extension
or renewal of any Guaranteed Obligation.
(b) Each Note Guarantor waives presentation to, demand of payment from
and protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Note Guarantor waives notice of any
default under the Notes or the Guaranteed Obligations. The obligations of each
Note Guarantor hereunder shall not be affected by (i) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (ii) any extension or renewal of any thereof;
(iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Notes or any other agreement; (iv) the release
of any security held by any Holder or the Trustee for the Guaranteed Obligations
or any of them; (v) the failure of any Holder or Trustee to exercise any right
or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of such Note Guarantor, except as provided in Section
11.02(b).
(c) Each Note Guarantor hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Note Guarantors,
such that such Note Guarantor's obligations would be less than the full amount
claimed. Each Note Guarantor hereby waives any right to which it may be entitled
to have the assets of the Company first be used and depleted as payment of the
Company's or such Note Guarantor's obligations hereunder prior to any amounts
being claimed from or paid by such Note Guarantor hereunder. Each Note Guarantor
hereby waives any right to which it may be entitled to require that the Company
be sued prior to an action being initiated against such Note Guarantor.
(d) Each Note Guarantor further agrees that its Note Guarantee herein
constitutes a guarantee of payment, performance and compliance when
84
due (and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any Note held for payment of the
Guaranteed Obligations.
(e) The Note Guarantee of each Note Guarantor is, to the extent and in
the manner set forth in Article 12, subordinated and subject in right of payment
to the prior payment in full of the principal of and premium, if any, and
interest on all Senior Indebtedness of the relevant Note Guarantor and is made
subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 4.11, 8.01, 11.02, 11.06
and 11.07, the obligations of each Note Guarantor hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Note Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of any Note Guarantor or would otherwise
operate as a discharge of any Note Guarantor as a matter of law or equity.
(g) Each Note Guarantor agrees that its Note Guarantee shall remain in
full force and effect until payment in full of all the Guaranteed Obligations.
Each Note Guarantor further agrees that its Note Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest or Additional Interest, if any, on
any Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
(h) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any Note
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest or Additional Interest, if any, on any Guaranteed Obligation when
and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Guaranteed
Obligation, each Note Guarantor hereby promises to and shall, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to
the Holders or the Trustee an amount equal to the sum of (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed
85
Obligations (but only to the extent not prohibited by law) and (iii) all other
monetary obligations of the Company to the Holders and the Trustee.
(i) Each Note Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article 12. Each Note Guarantor further agrees that,
as between it, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of any Note Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guaranteed Obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article 6, such Guaranteed Obligations (whether or
not due and payable) shall forthwith become due and payable by such Note
Guarantor for the purposes of this Section 11.01.
(j) Each Note Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 11.01. (k) Upon
request of the Trustee, each Note Guarantor shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 11.02. LIMITATION ON LIABILITY. (a) Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the Guaranteed Obligations guaranteed hereunder by any Note Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Note Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
(b) A Note Guarantee as to any Note Guarantor shall terminate and be
of no further force or effect and such Note Guarantor shall be deemed to be
released from all obligations under this Article 11 upon (i) the merger or
consolidation of such Note Guarantor with or into any Person other than the
Company or a Subsidiary or Affiliate of the Company where such Note Guarantor is
not the surviving entity of such consolidation or merger, (ii) the sale by the
Company or any Subsidiary of the Company (or any pledgee of the Company) of the
Capital Stock of such Note Guarantor, where, after such sale, such Note
Guarantor is no longer a Subsidiary of the Company; PROVIDED, HOWEVER, that each
such merger, consolidation or sale (or, in the case of a sale by such a pledgee,
the disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b) or (iii) otherwise permitted under Section 4.11(b). At
86
the request of the Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release (in the form provided by the Company).
SECTION 11.03. SUCCESSORS AND ASSIGNS. This Article 11 shall be
binding upon each Note Guarantor and its successors and assigns and shall inure
to the benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Notes shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.04. NO WAIVER. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 11 at law,
in equity, by statute or otherwise.
SECTION 11.05. MODIFICATION. No modification, amendment or waiver of
any provision of this Article 11, nor the consent to any departure by any Note
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Note Guarantor in any case shall entitle such Note
Guarantor to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 11.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE NOTE
GUARANTORS. Each Subsidiary which is required to become a Note Guarantor
pursuant to Section 4.11 shall execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit C hereto pursuant to which such Subsidiary
shall become a Note Guarantor under this Article 11 and shall guarantee the
Guaranteed Obligations. Concurrently with the execution and delivery of such
supplemental indenture, the Company shall deliver to the Trustee an Opinion of
Counsel and an Officers' Certificate to the effect that such supplemental
indenture has been duly authorized, executed and delivered by such Subsidiary
and that, subject to the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principles of equity, and other customer exceptions,
whether considered in a proceeding at law or in equity, the Note Guarantee of
such Note Guarantor is a legal, valid and binding obligation of such Note
Guarantor, enforceable against such Note Guarantor in accordance with its terms
and or to such other matters as the Trustee may reasonably request.
87
SECTION 11.07. RELEASE OF NOTE GUARANTEES. Any term or provision of
this Indenture to the contrary notwithstanding, the Note Guarantee of a Note
Guarantor shall be released: (1) in connection with any sale or other
disposition of all or substantially all of the assets of that Note Guarantor
(including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) a Subsidiary of the Company,
if the sale or other disposition complies with Section 4.06; (2) in connection
with any sale of Capital Stock of a Note Guarantor to a Person that is not
(either before or after giving effect to such transaction) a Subsidiary of the
Company, if the sale complies with Section 4.06; (3) if the Company designates
any Restricted Subsidiary that is a Note Guarantor as an Unrestricted Subsidiary
in accordance with the applicable provisions of this Indenture; or (4) if the
Note Guarantor participates in a Receivables Facility and such participation is
such Note Guarantor's only on-going activity.
SECTION 11.08. NON-IMPAIRMENT. The failure to endorse a Note Guarantee
on any Note shall not affect or impair the validity thereof.
ARTICLE 12
SUBORDINATION OF THE NOTE GUARANTEES
SECTION 12.01. AGREEMENT TO SUBORDINATE. Each Note Guarantor agrees,
and each Holder by accepting a Note agrees, that the obligations of a Note
Guarantor hereunder are subordinated in right of payment, to the extent and in
the manner provided in this Article 12, to the prior payment in full of all
existing and future Senior Indebtedness of such Note Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness of such Note Guarantor. The obligations hereunder with
respect to a Note Guarantor shall in all respects rank equally in right of
payment with any existing and future Senior Subordinated Indebtedness of such
Note Guarantor and shall be senior in right of payment to all future
Subordinated Obligations of such Note Guarantor; and only Indebtedness of such
Note Guarantor that is Senior Indebtedness of such Note Guarantor shall rank
senior to the obligations of such Note Guarantor in accordance with the
provisions set forth herein.
SECTION 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
or distribution of the assets of a Note Guarantor to creditors upon a total or
partial liquidation or a total or partial dissolution of such Note Guarantor or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Note Guarantor or its property (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments made from the
trust described under Article 8):
(a) the holders of Senior Indebtedness of such Note Guarantor shall
be entitled to receive payment in full of such Senior
88
Indebtedness before the Holders are entitled to receive any
payment of principal of or interest on the Notes; and
(b) until such Senior Indebtedness is paid in full any payment or
distribution to which Holders would be entitled but for this
Article 12 shall be made to holders of such Senior Indebtedness
as their interests may appear.
SECTION 12.03. DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS OF A NOTE
GUARANTOR. A Note Guarantor may not pay principal of, premium (if any) or
interest on the Notes, or make any further deposit pursuant to the provisions of
Article 8, and may not otherwise purchase, repurchase, redeem or otherwise
acquire or retire for value any Notes (collectively, "pay its Guarantee")
(except in Permitted Junior Securities or except from a previously created trust
under Article 8) if:
(a) any Designated Senior Indebtedness of such Note Guarantor is not
paid when due, whether upon acceleration or otherwise, or
(b) any other default on Designated Senior Indebtedness of such Note
Guarantor occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms
unless, in either case,
(x) the default has been cured or waived and any such acceleration
has been rescinded, or
(y) such Designated Senior Indebtedness has been paid in full;
PROVIDED, HOWEVER, that such Note Guarantor may pay the Notes without regard to
the foregoing if such Note Guarantor and the Trustee receive written notice
approving such payment from the Representative of the Designated Senior
Indebtedness with respect to which either of the events set forth in clause (a)
or (b) of this sentence has occurred and is continuing.
In addition, during the continuance of any default (other than a default
described in clause (a) or (b) of the immediately preceding paragraph) with
respect to any Designated Senior Indebtedness of such Note Guarantor pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the Notes
(except in Permitted Junior Securities or except from a previously created trust
under Article 8) for a period (a "Guarantee Payment Blockage Period") commencing
upon the receipt by the Trustee (with a copy to such Note Guarantor and the
Company) of written
89
notice (a "Guarantee Blockage Notice") of such default from the Representative
of the holders of the Designated Senior Indebtedness of such Note Guarantor
specifying an election to effect a Guarantee Payment Blockage Period and ending
179 days thereafter (or earlier if such Guarantee Payment Blockage Period is
terminated:
(a) by written notice to the Trustee and such Note Guarantor and the
Company from the Person or Persons who gave such Blockage Notice,
(b) by repayment in full of such Designated Senior Indebtedness, or
(c) because the default giving rise to such Guarantee Blockage Notice
is no longer continuing).
Subject to Article 7 hereof, if the Trustee receives a Guarantee
Blockage Notice, from a Representative of such Designated Senior Indebtedness,
the Trustee can conclusively rely as to the occurrence of clauses (b) and (c) of
the preceding paragraph upon notice from such Representative.
Notwithstanding the provisions described in the immediately preceding
paragraph (but subject to the provisions contained in the second preceding and
in the immediately succeeding paragraph), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have accelerated
the maturity of such Designated Senior Indebtedness, such Note Guarantor may
resume paying its Note Guarantee after such Guarantee Payment Blockage Period,
including any missed payments.
Not more than one Guarantee Blockage Notice may be given with respect
to a Note Guarantor in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Indebtedness of such Note
Guarantor during such period; PROVIDED, HOWEVER, that if any Guarantee Blockage
Notice within such 360-day period is given by or on behalf of any holders of
Designated Senior Indebtedness of such Note Guarantor other than the Bank
Indebtedness, the Representative of the Bank Indebtedness may give another
Guarantee Blockage Notice within such period; PROVIDED, FURTHER, HOWEVER, that
in no event may the total number of days during which any Guarantee Payment
Blockage Period or Periods (including any periods in respect of any additional
Guarantee Blockage Notices delivered by the Representative pursuant to the prior
sentence) is in effect exceed 179 days in the aggregate during any 360
consecutive day period. For purposes of this Section 12.03, no default or event
of default that existed or was continuing on the date of the commencement of any
Guarantee Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Guarantee Payment Blockage Period shall be, or be
made, the basis of the commencement of a subsequent Guarantee Payment
90
Blockage Period by the Representative of such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such default or
event of default shall have been cured or waived for a period of not less than
90 consecutive days.
SECTION 12.04. DEMAND FOR PAYMENT. If payment of the Notes is
accelerated because of an Event of Default and a demand for payment is made on a
Note Guarantor pursuant to Article 11, the Trustee (PROVIDED that the Trustee
shall have received written notice from the Company or such Note Guarantor, on
which notice the Trustee shall be entitled to conclusively rely) shall promptly
notify the holders of the Designated Senior Indebtedness of such Note Guarantor
(or the Representative of such holders) of such demand. If any Designated Senior
Indebtedness of such Note Guarantor is outstanding, such Note Guarantor may not
pay its Guarantee until five Business Days after such holders or the
Representative of the holders of Designated Senior Indebtedness of such Note
Guarantor receive notice of such demand and, thereafter, may pay its Guarantee
only if this Article 12 otherwise permits payment at that time.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a payment or
distribution is made to Holders that because of this Article 12 should not have
been made to them, the Holders who receive the payment or distribution shall
hold such payment or distribution in trust for holders of the Senior
Indebtedness of the relevant Note Guarantor and pay it over to them as their
respective interests may appear.
SECTION 12.06. SUBROGATION. After all Senior Indebtedness of a Note
Guarantor is paid in full and until the Notes are paid in full in cash, Holders
shall be subrogated to the rights of holders of Senior Indebtedness of such Note
Guarantor to receive distributions applicable to Designated Senior Indebtedness
of such Note Guarantor. A distribution made under this Article 12 to holders of
Senior Indebtedness of such Note Guarantor which otherwise would have been made
to Holders is not, as between such Note Guarantor and Holders, a payment by such
Note Guarantor on Senior Indebtedness of such Note Guarantor.
SECTION 12.07. RELATIVE RIGHTS. This Article 12 defines the relative
rights of Holders and holders of Senior Indebtedness of a Note Guarantor.
Nothing in this Indenture shall:
(a) impair, as between a Note Guarantor and Holders, the obligation of
a Note Guarantor which is absolute and unconditional, to make payments with
respect to the Guaranteed Obligations to the extent set forth in Article
11; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a default by a Note Guarantor under its
91
obligations with respect to the Guaranteed Obligations, subject to the
rights of holders of Senior Indebtedness of such Note Guarantor to receive
distributions otherwise payable to Holders.
SECTION 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY A NOTE GUARANTOR.
No right of any holder of Senior Indebtedness of a Note Guarantor to enforce the
subordination of the obligations of such Note Guarantor hereunder shall be
impaired by any act or failure to act by such Guarantor or by its failure to
comply with this Indenture.
SECTION 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 12.03, the Trustee or the Paying Agent may continue to make payments on
the Notes and shall not be charged with knowledge of the existence of facts that
would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it in its sole discretion that payments may not
be made under this Article 12. A Note Guarantor, the Registrar or co-registrar,
the Paying Agent, a Representative or a holder of Senior Indebtedness of a Note
Guarantor may give the notice; PROVIDED, HOWEVER, that if an issue of Senior
Indebtedness of a Note Guarantor has a Representative, only the Representative
may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of a Note Guarantor with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 12 with respect to any Senior Indebtedness of a Note Guarantor
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness of such Note Guarantor; and nothing in Article 7 shall
deprive the Trustee of any of its rights as such holder. Nothing in this Article
12 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07 or any other Section of this Indenture.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of a Note Guarantor, the distribution may be made and the notice given to their
Representative (if any).
SECTION 12.11. ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE. The failure of a Note Guarantor to make a payment on any of
its obligations by reason of any provision in this Article 12 shall not be
construed as preventing the occurrence of a default by such Note Guarantor under
such obligations. Nothing in this Article 12 shall have any effect on the right
of the Holders or the Trustee to make a demand for payment on a Note Guarantor
pursuant to Article 11.
92
SECTION 12.12. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Holders shall be
entitled to conclusively rely (a) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (b) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of a Note Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness of a Note Guarantor and other Indebtedness of a Note
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 12.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of a Note Guarantor to participate in any payment or distribution
pursuant to this Article 12, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness of such Note Guarantor held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
other facts pertinent to the rights of such Person under this Article 12, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to
all actions or omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
accepting a Note authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of each
of the Note Guarantors as provided in this Article 12 and appoints the Trustee
as attorney-in-fact for any and all such purposes.
SECTION 12.14. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF A NOTE GUARANTOR. Notwithstanding anything that may be
interpreted to the contrary, the Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of a Note Guarantor and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders or the relevant Note Guarantor or any other Person, money
or assets to which any holders of Senior Indebtedness of such Note Guarantor
shall be entitled by virtue of this Article 12 or otherwise.
SECTION 12.15. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS OF A NOTE
GUARANTOR ON SUBORDINATION PROVISIONS. Each Holder by accepting a Note
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of a Note Guarantor, whether such Senior Indebtedness was created
or acquired before or after the issuance of the
93
Notes, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
SECTION 12.16. TRUST MONIES NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article 8 by the Trustee for the
payment of principal of, and interest and Additional Interest on, the Notes
shall not be subordinated to the prior payment of any Senior Indebtedness of any
Note Guarantor or subject to the restrictions set forth in this Article 12, and
none of the Holders shall be obligated to pay over any such amount to a Note
Guarantor or any holder of Senior Indebtedness of Note Guarantor or any other
creditor of a Note Guarantor.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such
imposed duties or incorporated provision shall control.
SECTION 13.02. NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Xxxxx Plastics Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention of:
Xxxxx X. Xxxxxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
94
Attention of:
Xxxxxxx Xxxxx
if to the Trustee:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention of:
Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed, first
class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders
may communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA.
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the
Trustee (except that in the case of any such request or application as to
which the furnishing of such documents, certificates and/or opinions is
specifically required by any provision of this Indenture relating to such
particular request or application, no additional certificates or opinions
shall be required) stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
95
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. WHEN NOTES DISREGARDED. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company, any Note Guarantor or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any Note Guarantor shall
be disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which the Trustee knows are so owned
shall be so disregarded. Subject to the foregoing, only Notes outstanding at the
time shall be considered in any such determination.
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 13.08. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a
Sunday or other day on which banking institutions are not required by law or
regulation to be open in the State of New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
96
SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company or any of the Note Guarantors,
shall not have any liability for any obligations of the Company or any of the
Note Guarantors under the Notes or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Notes.
SECTION 13.11. SUCCESSORS. All agreements of the Company and each Note
Guarantor in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 13.13. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
97
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
as of the date first written above.
XXXXX PLASTICS CORPORATION,
by_____________________________
Name:
Title:
BPC HOLDING CORPORATION,
XXXXX IOWA CORPORATION,
PACKERWARE CORPORATION,
KNIGHT PLASTICS, INC.,
XXXXX XXXXXXXX CORPORATION,
XXXXX PLASTICS DESIGN CORPORATION,
POLY-SEAL CORPORATION,
XXXXX PLASTICS ACQUISITIONS CORPORATION III,
VENTURE PACKAGING, INC.,
VENTURE PACKAGING MIDWEST, INC.,
XXXXX PLASTICS TECHNICAL SERVICES, INC.,
CPI HOLDING CORPORATION,
AEROCON, INC.,
PESCOR, INC.,
XXXXX TRI-PLAS CORPORATION,
CARDINAL PACKAGING, INC.
by_____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
by_____________________________
Name:
Title:
98
APPENDIX A
PROVISIONS RELATING TO ORIGINAL NOTES,
ADDITIONAL NOTES AND EXCHANGE NOTES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Note or beneficial interest therein,
the rules and procedures of the Depositary for such Global Note, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Definitive Note" means a certificated Initial Note or Exchange Note
(bearing the Restricted Notes Legend if the transfer of such Note is restricted
by applicable law) that does not include the Global Notes Legend.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Notes Legend" means the legend set forth under that caption in
Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means JPMorgan Securities Inc., Xxxxxxx, Sachs &
Co., Credit Suisse First Boston Corporation and The Royal Bank of Scotland plc.
"Notes Custodian" means the custodian with respect to a Global Note
(as appointed by the Depositary) or any successor person thereto, who shall
initially be the Trustee.
"Purchase Agreement" means (a) the Purchase Agreement dated July 17,
2002, among the Company, the Note Guarantors and the Initial Purchasers and (b)
any other similar Purchase Agreement relating to Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means an offer by the Company, pursuant to
a Registration Rights Agreement, to certain Holders of Initial Notes, to issue
and deliver to such Holders, in exchange for their Initial Notes, a like
aggregate principal amount of Exchange Notes registered under the Securities
Act.
"Registration Rights Agreement" means (a) the Registration Rights
Agreement dated July 22, 2002, among the Company, the Note Guarantors and the
Initial Purchasers and (b) any other similar Registration Rights Agreement
relating to Additional Notes.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Notes" means all Initial Notes offered and sold outside
the United States in reliance on Regulation S.
"Restricted Period", with respect to any Notes, means the period of 40
consecutive days beginning on and including the later of (a) the day on which
such Notes are first offered to persons other than distributors (as defined in
Regulation S under the Securities Act) in reliance on Regulation S, notice of
which day shall be promptly given by the Company to the Trustee, and (b) the
Issue Date with respect to such Notes.
"Restricted Notes Legend" means the legend set forth in Section
2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means all Initial Notes offered and sold to QIBs in
reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a registration statement filed by
the Company in connection with the offer and sale of Initial Notes pursuant to
the Registration Rights Agreement.
"Transfer Restricted Notes" means Definitive Notes and any other Notes
that bear or are required to bear the Restricted Notes Legend.
2
1.2 OTHER DEFINITIONS
TERM: DEFINED IN SECTION:
"Agent Members"..........................................2.1(c)
"IAI Global Note"........................................2.1(b)
"Global Note"............................................2.1(b)
"Regulation S Global Note"...............................2.1(b)
"Rule 144A Global Note"..................................2.1(b)
2. THE NOTES
2.1 FORM AND DATING
(a) The Initial Notes issued on the date hereof will be (i) offered
and sold by the Company pursuant to the Purchase Agreement and (ii) resold,
initially only to (1) QIBs in reliance on Rule 144A and (2) Persons other than
U.S. Persons (as defined in Regulation S) in reliance on Regulation S. Such
Initial Notes may thereafter be transferred to, among others, QIBs, purchasers
in reliance on Regulation S and, except as set forth below, IAIs in accordance
with Rule 501. Additional Notes offered after the date hereof may be offered and
sold by the Company from time to time pursuant to one or more Purchase
Agreements in accordance with applicable law.
(b) GLOBAL NOTES. Rule 144A Notes shall be issued initially in the
form of one or more permanent global Notes in definitive, fully registered form
(collectively, the "Rule 144A Global Note") and Regulation S Notes shall be
issued initially in the form of one or more global Notes (collectively, the
"Regulation S Global Note"), in each case without interest coupons and bearing
the Global Notes Legend and Restricted Notes Legend, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Notes
Custodian, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
provided in this Indenture. One or more global notes in definitive, fully
registered form without interest coupons and bearing the Global Notes Legend and
the Restricted Notes Legend (collectively, the "IAI Global Note") shall also be
issued on the Closing Date, deposited with the Notes Custodian, and registered
in the name of the Depositary or a nominee of the Depositary, duly executed by
the Company and authenticated by the Trustee as provided in this Indenture to
accommodate transfers of beneficial interests in the Notes to IAIs subsequent to
the initial distribution. Beneficial ownership interests in the Regulation S
Global Note shall not be exchangeable for interests in the Rule 144A Global
Note, the IAI Global Note or any other Note without a Restricted Notes Legend
until the expiration of the Restricted Period. The Rule 144A Global Note, the
IAI Global Note and the Regulation S Global Note are each referred to herein as
a "Global Note" and are collectively referred
3
to herein as "Global Notes", PROVIDED that the term "Global Note" when used in
Sections 2.1(b), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4 shall also include any
Note in global form issued in connection with a Registered Exchange Offer. The
aggregate principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee and on the schedules thereto as hereinafter provided.
(c) BOOK-ENTRY PROVISIONS. This Section 2.1(c) shall apply only to a
Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by two Officers, authenticate and deliver initially one or more Global
Notes that (i) shall be registered in the name of the Depositary for such Global
Note or Global Notes or the nominee of such Depositary and (ii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as Notes Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Indenture with respect to any Global Note held on their behalf
by the Depositary or by the Trustee as Notes Custodian or under such Global
Note, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global Note.
(d) DEFINITIVE NOTES. Except as provided in Section 2.3 or 2.4, owners
of beneficial interests in Global Notes shall not be entitled to receive
physical delivery of certificated Notes.
2.2 AUTHENTICATION. The Trustee shall authenticate and make available for
delivery upon a written order of the Company signed by two Officers (a) Original
Notes for original issue on the date hereof in an aggregate principal amount of
$250,000,000; (b) subject to the terms of this Indenture, Additional Notes and
(c) the Exchange Notes for issue only in a Registered Exchange Offer pursuant to
a Registration Rights Agreement and for a like principal amount of Initial Notes
exchanged pursuant thereto. Such order shall specify the amount of the Notes to
be authenticated, the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes or Exchange Notes.
Notwithstanding anything to the contrary in this Appendix or otherwise in this
Indenture, any issuance of Additional Notes after the Closing Date shall be in a
principal amount of at least $1.0 million, whether such Additional Notes are of
the same or a different series than the Original Notes.
4
2.3 TRANSFER AND EXCHANGE. (a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES.
When Definitive Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal principal amount
of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Notes surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or his attorney duly authorized in
writing; and
(2) in the case of Transfer Restricted Notes, are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the Registrar
by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (in the form
set forth on the reverse side of the Initial Note); or
(B) if such Definitive Notes are being transferred to the
Company, a certification to that effect (in the form set forth on the
reverse side of the Initial Note); or
(C) if such Definitive Notes are being transferred pursuant to an
exemption from registration in accordance with Rule 144 under the
Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (x) a certification
to that effect (in the form set forth on the reverse side of the
Initial Note) and (y) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set forth in
Section 2.3(e)(i).
5
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side of the
Initial Note) that such Definitive Note is being transferred (1) to a QIB
in accordance with Rule 144A, (2) to an IAI that has furnished to the
Trustee a signed letter substantially in the form of Exhibit D or (3)
outside the United States in an offshore transaction within the meaning of
Regulation S and in compliance with Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct
the Notes Custodian to make, an adjustment on its books and records with
respect to such Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Note, such
instructions to contain information regarding the Depositary account to be
credited with such increase, then the Trustee shall cancel such Definitive
Note and cause, or direct the Notes Custodian to cause, in accordance with
the standing instructions and procedures existing between the Depositary
and the Notes Custodian, the aggregate principal amount of Notes
represented by the Global Note to be increased by the aggregate principal
amount of the Definitive Note to be exchanged and shall credit or cause to
be credited to the account of the Person specified in such instructions a
beneficial interest in the Global Note equal to the principal amount of the
Definitive Note so canceled. If no Global Notes are then outstanding and
the Global Note has not been previously exchanged for certificated Notes
pursuant to Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers'
Certificate, a new Global Note in the appropriate principal amount.
6
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Note
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Note or
another Global Note and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Note and the account
of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Note being transferred. Transfers by an owner
of a beneficial interest in the Rule 144A Global Note or the IAI Global Note to
a transferee who takes delivery of such interest through the Regulation S Global
Note, whether before or after the expiration of the Restricted Period, shall be
made only upon receipt by the Trustee of a certification in the form provided on
the reverse of the Initial Notes from the transferor to the effect that such
transfer is being made in accordance with Regulation S or (if available) Rule
144 under the Securities Act and that, if such transfer is being made prior to
the expiration of the Restricted Period, the interest transferred shall be held
immediately thereafter through Euroclear or Clearstream. In the case of a
transfer of a beneficial interest in either the Regulation S Global Note or the
Rule 144A Global Note for an interest in the IAI Global Note, the transferee
must furnish a signed letter substantially in the form of Exhibit D to the
Trustee.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Note to a beneficial interest in another Global Note, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Global Note to which such interest is being
transferred in an amount equal to the principal amount of the interest to
be so transferred, and the Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of Global
Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix (other
than the provisions set forth in Section 2.4), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(iv) In the event that a Global Note is exchanged for Definitive Notes
pursuant to Section 2.4 prior to the consummation of the Registered
Exchange Offer or the effectiveness of the Shelf Registration Statement
with respect to such Notes, such Notes may be exchanged only in accordance
with such procedures as are substantially consistent with the provisions of
this Section 2.3 (including the certification requirements set forth on the
reverse of the Initial Notes intended to ensure that
7
such transfers comply with Rule 144A, Regulation S or such other applicable
exemption from registration under the Securities Act, as the case may be)
and such other procedures as may from time to time be adopted by the
Company.
(d) RESTRICTIONS ON TRANSFER OF REGULATION S GLOBAL NOTE. (i) Prior to
the expiration of the Restricted Period, interests in the Regulation S Global
Note may only be held through Euroclear or Clearstream. During the Restricted
Period, beneficial ownership interests in the Regulation S Global Note may only
be sold, pledged or transferred through Euroclear or Clearstream in accordance
with the Applicable Procedures and only (1) to the Company, (2) so long as such
Note is eligible for resale pursuant to Rule 144A, to a person whom the selling
holder reasonably believes is a QIB that purchases for its own account or for
the account of a QIB to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, (3) in an offshore transaction in
accordance with Regulation S, (4) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under the
Securities Act, (5) to an IAI purchasing for its own account, or for the account
of such an IAI, in a minimum principal amount of Notes of $250,000 or (6)
pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States. Prior to the expiration of the Restricted Period, transfers by an
owner of a beneficial interest in the Regulation S Global Note to a transferee
who takes delivery of such interest through the Rule 144A Global Note or the IAI
Global Note shall be made only in accordance with Applicable Procedures and upon
receipt by the Trustee of a written certification from the transferor of the
beneficial interest in the form provided on the reverse of the Initial Note to
the effect that such transfer is being made to (1) a QIB within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A or (2) an IAI
purchasing for its own account, or for the account of such an IAI, in a minimum
principal amount of the Notes of $250,000. Such written certification shall no
longer be required after the expiration of the Restricted Period. In the case of
a transfer of a beneficial interest in the Regulation S Global Note for an
interest in the IAI Global Note, the transferee must furnish a signed letter
substantially in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Note shall be transferable
in accordance with applicable law and the other terms of this Indenture.
8
(e) LEGEND.
(i) Except as permitted by the following paragraphs (ii), (iii) or
(iv), each Note certificate evidencing the Global Notes and the Definitive
Notes (and all Notes issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following form (each
defined term in the legend being defined as such for purposes of the legend
only):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE."
9
Each Definitive Note shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Note for a Definitive Note that does not bear the
legends set forth above and rescind any restriction on the transfer of such
Transfer Restricted Note if the Holder certifies in writing to the
Registrar that its request for such exchange was made in reliance on Rule
144 (such certification to be in the form set forth on the reverse of the
Initial Note).
(iii) After a transfer of any Original or Additional Notes during the
period of the effectiveness of a Shelf Registration Statement with respect
to such Original or Additional Notes, as the case may be, all requirements
pertaining to the Restricted Notes Legend on such Original or Additional
Notes shall cease to apply and the requirements that any such Original or
Additional Notes be issued in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with respect
to the Original or Additional Notes pursuant to which Holders of such
Original or Additional Notes are offered Exchange Notes in exchange for
their Original or Additional Notes, all requirements pertaining to Original
or Additional Notes that Original or Additional Notes be issued in global
form shall continue to apply, and Exchange Notes in global form without the
Restricted Notes Legend shall be available to Holders that exchange such
Initial Notes in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the Restricted
Period of any Initial Note acquired pursuant to Regulation S, all
requirements that such Initial Note bear the Restricted Notes Legend shall
cease to apply and the requirements requiring any such Initial Note be
issued in global form shall continue to apply.
(vi) Any Additional Notes sold in a registered offering shall not be
required to bear the Restricted Notes Legend.
10
(f) CANCELATION OR ADJUSTMENT OF GLOBAL NOTE. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be
returned by the Depositary to the Trustee for cancelation or retained and
canceled by the Trustee. At any time prior to such cancelation, if any
beneficial interest in a Global Note is exchanged for Definitive Notes,
transferred in exchange for an interest in another Global Note, redeemed,
repurchased or canceled, the principal amount of Notes represented by such
Global Note shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the Notes Custodian for such Global Note)
with respect to such Global Note, by the Trustee or the Notes Custodian, to
reflect such reduction.
(g) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Definitive Notes and
Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such transfer taxes, assessments or
similar governmental charge payable upon exchanges pursuant to Sections
2.07, 3.06, 4.06, 4.08 and 9.05 of this Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent or the Registrar may
deem and treat the person in whose name a Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company,
the Trustee, the Paying Agent or the Registrar shall be affected by notice
to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Notes surrendered upon
such transfer or exchange.
(h) NO OBLIGATION OF THE TRUSTEE.
11
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records
of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Notes shall be
given or made only to the registered Holders (which shall be the Depositary
or its nominee in the case of a Global Note). The rights of beneficial
owners in any Global Note shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and
any beneficial owners.
(ii) 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 Note (including any transfers between or
among Depositary participants, members or beneficial owners in any Global
Note) 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.
2.4 DEFINITIVE NOTES
(a) A Global Note deposited with the Depositary or with the Trustee as
Notes Custodian pursuant to Section 2.1 or issued in connection with a
Registered Exchange Offer shall be transferred to the beneficial owners thereof
in the form of Definitive Notes in an aggregate principal amount equal to the
principal amount of such Global Note, in exchange for such Global Note, only if
such transfer complies with Section 2.3 and (i) the Depositary notifies the
Company that it is unwilling or unable to continue as a Depositary for such
Global Note or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Company within 90 days of such notice or after the Company becomes aware
of such cessation, or (ii) an Event of Default has occurred and is continuing or
(iii) the Company, in its sole discretion, notifies the Trustee in writing that
it elects to cause the issuance of certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary to
12
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of Definitive Notes of authorized denominations. Any portion of a Global
Note transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any certificated
Initial Note in the form of a Definitive Note delivered in exchange for an
interest in the Global Note shall, except as otherwise provided by Section
2.3(e), bear the Restricted Notes Legend.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Note may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company shall promptly make available to
the Trustee a reasonable supply of Definitive Notes in fully registered form
without interest coupons.
13
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT 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 NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
2
No. $__________
10 3/4% Senior Subordinated Note due 2012
CUSIP No. ______
ISIN No.
XXXXX PLASTICS CORPORATION, a Delaware corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum [of Dollars] listed on the
Schedule of Increases or Decreases in Global Note attached hereto on July 15,
2012.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
XXXXX PLASTICS CORPORATION,
by
-----------------------
Name:
Title:
by
-----------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
-------------------------
Authorized Signatory
2
*/ If the Note is to be issued in global form, add the Global Notes Legend and
the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL NOTES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".
3
[FORM OF REVERSE SIDE OF INITIAL NOTE]
10 3/4% Senior Subordinated Note due 2012
1. INTEREST
(a) XXXXX PLASTICS CORPORATION, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above. The Company
shall pay interest semiannually on January 15 and July 15 of each year. Interest
on the Notes shall accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for,
from July 22, 2002 until the principal hereof is due. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
(b) ADDITIONAL INTEREST. The Holder of this Note is entitled to the
benefits of a Registration Rights Agreement, dated as of July 22, 2002, among
the Company, BPC Holding Corporation, Xxxxx Iowa Corporation, Packerware
Corporation, Knight Plastics, Inc., Xxxxx Xxxxxxxx Corporation, Xxxxx Plastics
Design Corporation, Poly-Seal Corporation, Xxxxx Plastics Acquisitions
Corporation III, Venture Packaging, Inc., Venture Packaging Midwest, Inc., Xxxxx
Plastics Technical Services, Inc., CPI Holding Corporation, Aerocon, Inc.,
Pescor, Inc., Xxxxx Tri-Plas Corporation and Cardinal Packaging, Inc., (the
"Note Guarantors") and the Initial Purchasers named therein (the "Registration
Rights Agreement"). Capitalized terms used in this paragraph (b) but not defined
herein have the meanings assigned to them in the Registration Rights Agreement.
The Registration Rights Agreement shall provide that in the event that either
the Exchange Offer is not completed or the Shelf Registration Statement, if
required thereby, is not declared effective on or prior to April 22, 2003 (the
"Target Registration Date"), the interest rate on the Registrable Securities
will be increased by (i) 0.25% per annum for the first 90-day period immediately
following the Target Registration Date and (ii) an additional 0.25% per annum
with respect to each subsequent 90-day period, in each case until the Exchange
Offer is completed or the Shelf Registration Statement, if required thereby, is
declared effective by the SEC or the Securities become freely tradable under the
Securities Act, up to a maximum aggregate increase of 1.00% per annum of
Additional Interest. If the Shelf Registration Statement has been declared
effective and thereafter either ceases to be effective or the Prospectus
contained therein ceases to be usable at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for more than 45
consecutive days or more than 60 days (whether or not consecutive) in any
12-month period, then the interest rate on the Registrable Securities will be
increased by 0.25% per annum commencing on the 46th or 61st day in such 12-month
period, with further increases, subject to a maximum of 1.00% per annum of
Additional Interest, in accordance with the schedule in this paragraph (b), and
ending on such date that the Shelf Registration Statement has again been
declared effective or the Prospectus again becomes usable or the Securities
become freely tradable under the Securities Act.
4
All accrued Additional Interest shall be paid to Holders in the same manner as
interest payments on the Notes on semi-annual payment dates which correspond to
interest payment dates for the Notes. Following the cure of all Registration
Defaults, the accrual of Additional Interest shall cease. The Trustee shall have
no responsibility with respect to the determination of the amount of any such
Additional Interest. For purposes of the foregoing, "Transfer Restricted Notes"
means (i) each Initial Note until the date on which such Initial Note has been
exchanged for a freely transferable Exchange Note in the Registered Exchange
Offer, (ii) each Initial Note or until the date on which such Initial Note has
been effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement or (iii) each Initial Note until
the date on which such Initial Note is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
2. METHOD OF PAYMENT
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the January 1 or July 1 next preceding the interest payment date even if Notes
are canceled after the record date and on or before the interest payment date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal, premium, if any, Additional Interest, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Notes represented by a Global Note (including principal, premium,
if any, Additional Interest, if any, and interest) shall be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depositary. The Company shall make all
payments in respect of a certificated Note (including principal, premium, if
any, interest and Additional Interest, if any), at the office of the Paying
Agent, except that, at the option of the Company, payment of interest or
Additional Interest may be made by mailing a check to the registered address of
each Holder thereof; PROVIDED, HOWEVER, that payments on the Notes may also be
made, in the case of a Holder of at least $1,000,000 aggregate principal amount
of Notes, by wire transfer to a U.S. dollar account maintained by the payee with
a bank in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
5
3. PAYING AGENT AND REGISTRAR
Initially, U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent or Registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
4. INDENTURE
The Company issued the Notes under an Indenture dated as of July 22,
2002 (the "Indenture"), among the Company, the Note Guarantors and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Notes are senior subordinated unsecured obligations of the Company. This
Note is one of the [Original][Additional] Notes referred to in the Indenture.
The Notes include the Original Notes, the Additional Notes and any Exchange
Notes issued in exchange for Initial Notes pursuant to the Indenture. The
Original Notes, the Additional Notes and any Exchange Notes are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates and make asset sales. The Indenture also imposes limitations on the
ability of the Company and each Note Guarantor to consolidate or merge with or
into any other Person or convey, transfer or lease all or substantially all its
property.
To guarantee the due and punctual payment of the principal, interest
and Additional Interest, if any, on the Notes and all other amounts payable by
the Company under the Indenture and the Notes when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes and the Indenture, the Note Guarantors have jointly and
severally unconditionally guaranteed the Guaranteed Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
6
5. OPTIONAL REDEMPTION
Except as set forth in the following paragraph, the Notes shall not be
redeemable at the option of the Company prior to July 15, 2007. Thereafter, the
Notes shall be redeemable at the option of the Company, in whole or in part, on
not less than 30 nor more than 60 days prior notice, at the following redemption
prices (expressed as percentages of principal amount), plus accrued and unpaid
interest and Additional Interest thereon, if any, to, but not including, the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest and Additional Interest, if any, due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on July 15 of the years set forth below:
REDEMPTION
YEAR PRICE
------------------------------------------------------------------
2007 105.375%
2008 103.583%
2009 101.792%
2010 and thereafter 100.000%
In addition, prior to July 15, 2005, the Company may redeem up to a maximum of
35% of the original aggregate principal amount of the Notes (calculated giving
effect to any issuance of Additional Notes) with the Net Cash Proceeds of one or
more Equity Offerings (i) by the Company or (ii) by Holding to the extent the
Net Cash Proceeds thereof are contributed to the Company or used to purchase
Capital Stock (other than Disqualified Stock) of the Company from the Company,
at a redemption price equal to 110.75% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest thereon, if any, to, but not
including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest and Additional Interest, if any, due on
the relevant interest payment date); PROVIDED, HOWEVER, that after giving effect
to any such redemption, at least 65% of the original aggregate principal amount
of the Notes (calculated giving effect to any issuance of Additional Notes)
remains outstanding. Any such redemption by the Company shall be made within 60
days of such Equity Offering upon and otherwise in accordance with the
procedures set forth in the Indenture.
6. SINKING FUND
The Notes are not subject to any sinking fund.
7
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
Notes to be redeemed at his or her registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest and Additional Interest, if any, on all Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or
such portions thereof) called for redemption.
8. REPURCHASE OF NOTES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL AND
ASSET DISPOSITIONS
In accordance with Section 4.08, upon a Change of Control, any Holder
of Notes will have the right, subject to certain conditions specified in the
Indenture, to cause the Company to repurchase all or any part of the Notes of
such Holder at a purchase price equal to 101% of the principal amount of the
Notes to be repurchased plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due
and Additional Interest, if any, on the relevant interest payment date that is
on or prior to the date of purchase) as provided in, and subject to the terms
of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company shall be
required to offer to purchase Notes upon the occurrence of certain events.
9. SUBORDINATION
The Notes and Note Guarantees are subordinated to Senior Indebtedness,
as defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Notes and Note Guarantees may be paid. The
Company and each Note Guarantor agrees, and each Holder by accepting a Note
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
10. DENOMINATIONS; TRANSFER; EXCHANGE
8
The Notes are in registered form without coupons in denominations of $1,000 and
whole multiples of $1,000. A Holder may transfer or exchange Notes in accordance
with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Notes
selected for redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) or to transfer or exchange any Notes
for a period of 15 days prior to a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered Holder of
this Note may be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY
If money for the payment principal, interest or Additional Interest,
if any, remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request unless an abandoned
property law designates another Person. After any such payment, Holders entitled
to the money must look to the Company for payment as general creditors and the
Trustee and the Paying Agent shall have no further liability with respect to
such monies.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of, and interest and Additional Interest, if any, on, the Notes to
redemption or maturity, as the case may be.
9
14. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes or the Note Guarantees may be amended without prior
notice to any Holder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Notes and (ii) any
default or compliance with any provisions may be waived with the written consent
of the Holders of at least a majority in principal amount of the outstanding
Notes. Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder, the Company, the Note Guarantors and the Trustee may
amend the Indenture or the Notes (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to provide
for uncertificated Notes in addition to or in place of certificated Notes;
PROVIDED, HOWEVER, that the uncertificated Notes are issued in registered form
for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code; (iv) to
make any change in Article 10 or 12 that would limit or terminate the benefits
available to any holder of Senior Indebtedness of the Company or a Note
Guarantor (or any Representative thereof) under Article 10 or 12 respectively;
(v) to add additional Guarantees with respect to the Notes or to secure the
Notes; (vi) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the TIA;
(vii) to add to the covenants of the Company or provide any additional rights or
benefits to the Holders or to surrender any right or power conferred upon the
Company; (viii) to make any change that does not adversely affect the rights of
any Holder; (ix) to provide for the issuance of the Exchange Notes or Additional
Notes in accordance with the provisions of this Indenture; (x) to evidence and
provide the acceptance of the appointment of a successor Trustee under the
Indenture.
15. DEFAULTS AND REMEDIES
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes by notice to the Company and the
Trustee may declare the principal of and accrued but unpaid interest on all the
Notes to be due and payable. Upon such a declaration, such principal and
interest will be due and payable immediately. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Notes will become immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. Under certain circumstances, the Holders of a majority in
principal amount of the outstanding Notes may rescind any such acceleration with
respect to the Notes and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such
10
Holders have offered to the Trustee reasonable indemnity or security against any
loss, liability or expense and certain other conditions are complied with.
Except to enforce the right to receive payment of principal, premium (if any) or
interest when due, no Holder may pursue any remedy with respect to the Indenture
or the Notes unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Notes have requested the Trustee in writing to pursue
the remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Notes have not given the Trustee a direction
inconsistent with such request within such 60-day period. Subject to certain
restrictions, the Holders of a majority in principal amount of the outstanding
Notes are given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company or any
Subsidiary Note Guarantor shall not have any liability for any obligations of
the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
18. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
11
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP AND ISIN NUMBERS
The Company has caused CUSIP and ISIN numbers to be printed on the
Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
THE COMPANY SHALL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
------------------------ ------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED NOTES
This certificate relates to $_________ principal amount of Notes held in (check
applicable space) ____ book-entry or _____ definitive form by the undersigned.
The undersigned (check one box below):
( ) has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above);
( ) has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) ( ) to the Company; or
(2) ( ) to the Registrar for registration in the name of the Holder,
without transfer; or
(3) ( ) pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) ( ) inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
(5) ( ) outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933 and such Note
shall be held immediately after the transfer through Euroclear or
Clearstream until the expiration of the Restricted Period (as
defined in the Indenture); or
14
(6) ( ) to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that
has furnished to the Trustee a signed letter containing certain
representations and agreements; or
(7) ( ) pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act of
1933.
----------------------------------
Your Signature
Signature Guarantee:
Date:
------------------- ----------------------------------
Signature must be guaranteed Signature of Signature Guarantee
by a participant in a recognized
signature guaranty medallion
program or other signature
guarantor acceptable to the
Trustee
--------------------------------------------------------------------------------
15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
---------------- ------------------------------
NOTICE: To be executed by
an executive officer
16
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The
following increases or decreases in this Global Note have been made:
Date of Amount of Amount of Principal amount of Signature of
Exchange decrease in increase in this Global Note authorized signatory
Principal Amount Principal Amount following such of Trustee or Notes
of this of this decrease or increase Custodian
Global Global
Note Note
17
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
ASSET DISPOSITION ( ) CHANGE OF CONTROL ( )
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE, STATE THE AMOUNT
($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: YOUR SIGNATURE:
----------------------- -------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE NOTE)
SIGNATURE GUARANTEE:
------------------------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
18
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT 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 NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. $__________
10 3/4% Senior Subordinated Note due 2012
CUSIP No. ______
ISIN No.
XXXXX PLASTICS CORPORATION, a Delaware corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum [of Dollars] listed on the
Schedule of Increases or Decreases in Global Note attached hereto on July 15,
2012.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
2
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
XXXXX PLASTICS CORPORATION,
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
*/ If the Note is to be issued in global form, add the Global Notes Legend and
the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL NOTES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".
3
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
10 3/4% Senior Subordinated Note due 2012
1. INTEREST.
XXXXX PLASTICS CORPORATION, a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. The Company shall pay
interest semiannually on January 15 and July 15 of each year. Interest on the
Notes shall accrue from the most recent date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for, from
July 22, 2002 until the principal hereof is due. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the January 1 or July 1 next preceding the interest payment date even if Notes
are canceled after the record date and on or before the interest payment date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal, premium, if any, and interest in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts. Payments in respect of the Notes represented by a
Global Note (including principal, premium and interest) shall be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depositary. The Company shall make all
payments in respect of a certificated Note (including principal, premium, if
any, and interest), at the office of the Paying Agent, except that, at the
option of the Company, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments on
the Notes may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
4
3. PAYING AGENT AND REGISTRAR
Initially, U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent or Registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
4. INDENTURE
The Company issued the Notes under an Indenture dated as of July 22, 2002 (the
"Indenture"), among the Company, the Note Guarantors and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all terms and
provisions of the Indenture, and Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Notes are senior subordinated unsecured obligations of the
Company. This Note is one of the [Exchange] [Additional] Notes referred to in
the Indenture. The Notes include the Original Notes, the Additional Notes and
any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture. The Original Notes, the Additional Notes and the Exchange Notes are
treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its Restricted
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, enter into or permit certain
transactions with Affiliates, create or incur Liens and make Asset Sales. The
Indenture also imposes limitations on the ability of the Company and each Note
Guarantor to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, the Note Guarantors have, jointly and severally,
unconditionally guaranteed the Guaranteed Obligations on a senior basis
subordinated pursuant to the terms of the Indenture.
5
5. OPTIONAL REDEMPTION
Except as set forth in the following paragraph, the Notes shall not be
redeemable at the option of the Company prior to July 15, 2007. Thereafter, the
Notes shall be redeemable at the option of the Company, in whole or in part, on
not less than 30 nor more than 60 days prior notice, at the following redemption
prices (expressed as percentages of principal amount), plus accrued and unpaid
interest and Additional Interest thereon, if any, to, but not including, the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest and Additional Interest, if any, due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on July 15 of the years set forth below:
REDEMPTION
YEAR PRICE
-----------------------------------------------------------------
2007 105.375%
2008 103.583%
2009 101.792%
2010 and thereafter 100.000%
In addition, prior to July 15, 2005, the Company may redeem up to a maximum of
35% of the original aggregate principal amount of the Notes (calculated giving
effect to any issuance of Additional Notes) with the Net Cash Proceeds of one or
more Equity Offerings (i) by the Company or (ii) by Holding to the extent the
Net Cash Proceeds thereof are contributed to the Company or used to purchase
Capital Stock (other than Disqualified Stock) of the Company from the Company,
at a redemption price equal to 110.75% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest thereon, if any, to, but not
including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest and Additional Interest, if any, due on
the relevant interest payment date); PROVIDED, HOWEVER, that after giving effect
to any such redemption, at least 65% of the original aggregate principal amount
of the Notes (calculated giving effect to any issuance of Additional Notes)
remains outstanding. Any such redemption by the Company shall be made within 60
days of such Equity Offering upon and otherwise in accordance with the
procedures set forth in the Indenture.
6. SINKING FUND
The Notes are not subject to any sinking fund.
6
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
Notes to be redeemed at his or her registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest and Additional Interest, if any, on all Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or
such portions thereof) called for redemption.
8. REPURCHASE OF NOTES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL AND
ASSET DISPOSITIONS
In accordance with Section 4.08, upon a Change of Control, any Holder
of Notes will have the right, subject to certain conditions specified in the
Indenture, to cause the Company to repurchase all or any part of the Notes of
such Holder at a purchase price equal to 101% of the principal amount of the
Notes to be repurchased plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
purchase) as provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company shall be
required to offer to purchase Notes upon the occurrence of certain events.
9. SUBORDINATION
The Notes and Note Guarantees are subordinated to Senior Indebtedness,
as defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Notes may be paid. The Company and each
Note Guarantor agrees, and each Holder by accepting a Note agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
7
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. Upon any transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or to transfer or
exchange any Notes for a period of 15 days prior to a selection of Notes to be
redeemed or 15 days before an interest payment date.
11. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered Holder of
this Note may be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Notes to redemption or maturity, as the case
may be.
8
14. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes or the Note Guarantees may be amended without prior
notice to any Holder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Notes and (ii) any
default or compliance with any provisions may be waived with the written consent
of the Holders of at least a majority in principal amount of the outstanding
Notes. Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder, the Company, the Note Guarantors and the Trustee may
amend the Indenture or the Notes (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to provide
for uncertificated Notes in addition to or in place of certificated Notes;
PROVIDED, HOWEVER, that the uncertificated Notes are issued in registered form
for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code; (iv) to
make any change in Article 10 or 12 that would limit or terminate the benefits
available to any holder of Senior Indebtedness of the Company or a Note
Guarantor (or any Representative thereof) under Article 10 or 12 respectively;
(v) to add additional Guarantees with respect to the Notes or to secure the
Notes; (vi) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the TIA;
(vii) to add to the covenants of the Company or provide any additional rights or
benefits to the Holders or to surrender any right or power conferred upon the
Company; (viii) to make any change that does not adversely affect the rights of
any Holder; (ix) to provide for the issuance of the Exchange Notes or Additional
Notes in accordance with the provisions of the Indenture; (x) to evidence and
provide the acceptance of the appointment of a successor Trustee under the
Indenture.
15. DEFAULTS AND REMEDIES
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes by notice to the Company and the
Trustee may declare the principal of and accrued but unpaid interest on all the
Notes to be due and payable. Upon such a declaration, such principal and
interest will be due and payable immediately. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Notes will become immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. Under certain circumstances, the Holders of a majority in
principal amount of the outstanding Notes may rescind any such acceleration with
respect to the Notes and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
9
the Trustee reasonable indemnity or security against any loss, liability or
expense and certain other conditions are complied with. Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to the Indenture or the Notes unless
(i) such Holder has previously given the Trustee notice that an Event of Default
is continuing, (ii) Holders of at least 25% in principal amount of the
outstanding Notes have requested the Trustee in writing to pursue the remedy,
(iii) such Holders have offered the Trustee reasonable security or indemnity
against any loss, liability or expense, (iv) the Trustee has not complied with
such request within 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount of
the outstanding Notes have not given the Trustee a direction inconsistent with
such request within such 60-day period. Subject to certain restrictions, the
Holders of a majority in principal amount of the outstanding Notes are given the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or that the Trustee determines is unduly
prejudicial to the rights of any other Holder or that would involve the Trustee
in personal liability. Prior to taking any action under the Indenture, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
or any Note Guarantor shall not have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a Note, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Notes.
18. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
10
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP AND ISIN NUMBERS
The Company has caused CUSIP and ISIN numbers to be printed on the
Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
THE COMPANY SHALL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
--------------------- ----------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note. Signature must
be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
12
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
ASSET DISPOSITION ( ) CHANGE OF CONTROL ( )
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY
THE COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE, STATE THE AMOUNT
($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: YOUR SIGNATURE:
--------------------- ----------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE NOTE)
SIGNATURE GUARANTEE:
------------------------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE.
13
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL Note
The initial principal amount of this Global Note is $[ ]. The
following increases or decreases in this Global Note have been made:
Date of Amount of Amount of Principal amount of Signature of
Exchange decrease in increase in this Global Note authorized signatory
Principal Amount Principal Amount following such of Trustee or Notes
of this of this decrease or increase Custodian
Global Global
Note Note
14
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of XXXXX PLASTICS CORPORATION (or its
successor), a Delaware corporation (the "Company"), BPC HOLDING
CORPORATION, XXXXX IOWA CORPORATION, PACKERWARE CORPORATION,
KNIGHT PLASTICS, INC., XXXXX XXXXXXXX CORPORATION, XXXXX
PLASTICS DESIGN CORPORATION, POLY-SEAL CORPORATION, XXXXX
PLASTICS ACQUISITIONS CORPORATION III, VENTURE PACKAGING, INC.,
VENTURE PACKAGING MIDWEST, INC., XXXXX PLASTICS TECHNICAL
SERVICES, INC., CPI HOLDING CORPORATION, AEROCON, INC., PESCOR,
INC., XXXXX TRI-PLAS CORPORATION, each a Delaware corporation,
and CARDINAL PACKAGING, INC., an Ohio corporation, and U.S.
BANK TRUST NATIONAL ASSOCIATION, a national banking
association, as trustee under the indenture referred to below
(the "Trustee").
W I T N E S S E T H :
WHEREAS the Company and BPC HOLDING CORPORATION, XXXXX IOWA
CORPORATION, PACKERWARE CORPORATION, KNIGHT PLASTICS, INC., XXXXX XXXXXXXX
CORPORATION, XXXXX PLASTICS DESIGN CORPORATION, POLY-SEAL CORPORATION, XXXXX
PLASTICS ACQUISITIONS CORPORATION III, VENTURE PACKAGING, INC., VENTURE
PACKAGING MIDWEST, INC., XXXXX PLASTICS TECHNICAL SERVICES, INC., CPI HOLDING
CORPORATION, AEROCON, INC., PESCOR, INC., XXXXX TRI-PLAS CORPORATION and
CARDINAL PACKAGING, INC. (the "Existing Guarantors") has heretofore executed and
delivered to the Trustee an Indenture (the "Indenture") dated as of July 22,
2002, providing for the issuance of an aggregate principal amount of up to
$250,000,000 of 10 3/4% Senior Subordinated Notes due 2012 (the "Notes");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations under
the Notes pursuant to a Note Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the Notes
as follows:
1. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and
severally with all the Existing Guarantors, to unconditionally guarantee the
Company's obligations under the Notes on the terms and subject to the conditions
set forth in Articles 11 and 12 of the Indenture and to be bound by all other
applicable provisions of the Indenture and the Notes.
2. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as
to the validity or sufficiency of this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
------------------------------
Name:
Title:
2
XXXXX PLASTICS CORPORATION,
by
-----------------------------
Name:
Title:
BPC HOLDING CORPORATION,
XXXXX IOWA CORPORATION,
PACKERWARE CORPORATION,
KNIGHT PLASTICS, INC.,
XXXXX XXXXXXXX CORPORATION,
XXXXX PLASTICS DESIGN CORPORATION,
POLY-SEAL CORPORATION,
XXXXX PLASTICS ACQUISITIONS CORPORATION III,
VENTURE PACKAGING, INC.,
VENTURE PACKAGING MIDWEST, INC.,
XXXXX PLASTICS TECHNICAL SERVICES, INC.,
CPI HOLDING CORPORATION,
AEROCON, INC.,
PESCOR, INC.,
XXXXX TRI-PLAS CORPORATION,
CARDINAL PACKAGING, INC.
by
-----------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee,
by
-----------------------------
Name:
Title:
3
EXHIBIT D
Form of
Transferee Letter of Representation
[Company]
In care of
[ ]
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the [ ]% Senior Subordinated Notes due 2012 (the "Notes") of Xxxxx
Plastics Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we invest
in or purchase Notes similar to the Notes in the normal course of our business.
We, and any accounts for which we are acting, are each able to bear the economic
risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date that is two years after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Notes (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement that has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act ("Rule 144A"), to a person we reasonably believe
is a qualified institutional buyer under Rule 144A (a "QIB") that is purchasing
for its own account or for the account of a QIB and to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Notes of
$250,000, or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale shall not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to be
made pursuant to clause (e) above prior to the Resale Restriction Termination
Date, the transferor shall deliver a letter from the transferee substantially in
the form of this letter to the Company and the Trustee, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and that it is acquiring such Notes for investment purposes and
not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to the
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the Notes pursuant to clause (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.
TRANSFEREE:_________________,
by:___________________________
2
