EXHIBIT 4.1
________________________________________________________________________________
TKC ACQUISITION CORP.
as the Acquiror of
The Xxxxxxx Company; and
$100,000,000
10 1/4% SENIOR NOTES DUE 2007
_________________________________________
INDENTURE
Dated as of September 26, 1997
_________________________________________
SUNTRUST BANK, ATLANTA
as Trustee
________________________________________________________________________________
CROSS-REFERENCE TABLE
Reconciliation and tie between the Trust Indenture Act
of 1939, as amended, and the Indenture, dated as of
September 26, 1997.
TRUST
INDENTURE
ACT INDENTURE
SECTION SECTION
-------- --------
(S)310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.08; 7.10
(c) N.A.
(S)311(a) 7.11
(b) 7.11
(c) N.A.
(S)312(a) 7.06(a); 7.06(b)
(b) 7.06(c)
(c) 7.06(d)
(S)313(a) 7.06(e)
(b) 7.06(f)
(c) 7.06(f)
(d) 7.06(g) 4.17; 4.20
(S)314(a) 7.06(g) N.A.
(b) 7.06(g) 11.03
(c)(1) 7.06(g) 11.03
(c)(2) 7.06(g) N.A.c(3)
(d) N.A.
(e) 11.04
(f) 4.20
(S)315(a) 7.01(b)
(b) 7.05
(c) 7.01(a)
(d) 7.01(c)
(e) 6.10
(S)316(a) 2.08
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 9.05(b)
(S)317(a)(1) 6.03
(a)(2) 6.08
(b) 2.04
(S)318(a) 11.01
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act............. 21
SECTION 1.03. Rules of Construction......................................... 22
SECTION 1.04. Form of Documents Delivered to Trustee........................ 22
SECTION 1.05. Acts of Holders............................................... 22
SECTION 1.06. Satisfaction and Discharge.................................... 23
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating............................................... 24
SECTION 2.02. Execution and Authentication.................................. 27
SECTION 2.03. Registrar and Paying Agent.................................... 28
SECTION 2.04. Paying Agent to Hold Money in Trust........................... 29
SECTION 2.05 Global Notes.................................................. 29
SECTION 2.06. Transfer and Exchange......................................... 30
SECTION 2.07. Replacement Notes............................................. 36
SECTION 2.08. Outstanding Notes............................................. 37
SECTION 2.09. Temporary Notes............................................... 37
SECTION 2.10. Cancellation.................................................. 38
SECTION 2.11. Payment of Interest: Interest Rights Preserved................ 38
SECTION 2.12. Computation of Interest....................................... 39
SECTION 2.13. Persons Deemed Owners......................................... 39
SECTION 2.14. CUSIP Numbers................................................. 39
ARTICLE III
REDEMPTION
SECTION 3.01. Notice to Trustee............................................. 39
SECTION 3.02. Selection of Notes to be Redeemed............................. 40
SECTION 3.03. Notice of Redemption.......................................... 40
SECTION 3.04. Effect of Notice of Redemption................................ 41
SECTION 3.05. Deposit of Redemption Price................................... 41
SECTION 3.06. Notes Redeemed in Part........................................ 41
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes.............................................. 42
SECTION 4.02. Maintenance of Office or Agency............................... 42
SECTION 4.03. Money for the Note Payments to be Held in Trust............... 43
SECTION 4.04. Corporate Existence........................................... 43
SECTION 4.05. Maintenance of Property....................................... 43
SECTION 4.06. Payment of Taxes and Other Claims............................. 44
SECTION 4.07. Repurchase at the Option of Holders upon a Change of Control.. 44
SECTION 4.08. Limitation on Asset Sales..................................... 46
SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of
Preferred Stock.............................................. 50
SECTION 4.10. Limitation on Restricted Payments............................. 50
SECTION 4.11. Limitation on Liens........................................... 53
SECTION 4.12. Sale and Leaseback Transactions............................... 53
SECTION 4.13. Limitation on Ownership of and Liens on Capital Stock......... 53
SECTION 4.14. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries....................................... 54
SECTION 4.15. Limitation on Layering Debt................................... 55
SECTION 4.16. Transactions with Affiliates.................................. 55
SECTION 4.17. Reports....................................................... 56
SECTION 4.18. Payments for Consent, Waiver or Amendment..................... 56
SECTION 4.19. Waiver of Stay Extension or Usury Laws........................ 56
SECTION 4.20. Compliance Certificate: Notice of Default or Event of Default. 56
SECTION 4.21. Investment Company Act........................................ 57
SECTION 4.22. Further Instruments and Acts.................................. 57
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.01. Merger, Consolidation or Sale of Assets....................... 57
SECTION 5.02. Successor Corporation Substituted............................. 58
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default............................................. 59
SECTION 6.02. Acceleration.................................................. 60
SECTION 6.03 Other Remedies................................................ 61
SECTION 6.04. Waiver of Past Defaults....................................... 61
SECTION 6.05. Control by Majority........................................... 62
SECTION 6.06. Limitation on Suits........................................... 62
SECTION 6.07. Rights of Holders to Receive Payment.......................... 62
SECTION 6.08. Trustee May File Proofs of Claim.............................. 63
SECTION 6.09. Priorities.................................................... 63
SECTION 6.10. Undertaking for Costs......................................... 64
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SECTION 6.11. Waiver of Stay or Extension Laws.............................. 64
SECTION 6.12. Trustee May Enforce Claims Without Possession of the Notes.... 64
SECTION 6.13. Restoration of Rights and Remedies............................ 64
SECTION 6.14. Rights and Remedies Cumulative................................ 64
SECTION 6.15. Delay or Omission Not Waiver.................................. 65
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee............................................. 65
SECTION 7.02. Rights of Trustee............................................. 66
SECTION 7.03. Individual Rights of Trustee.................................. 66
SECTION 7.04. Trustee's Disclaimer.......................................... 67
SECTION 7.05. Notice of Defaults............................................ 67
SECTION 7.06. Preservation of Information. Reports by Trustee to Holders... 67
SECTION 7.07. Compensation and Indemnity.................................... 68
SECTION 7.08. Replacement of Trustee........................................ 69
SECTION 7.09. Successor Trustee by Merger................................... 71
SECTION 7.10. Eligibility; Disqualification................................. 71
SECTION 7.11. Preferential Collection of Claims Against Company............. 72
ARTICLE VIII
DEFEASANCE
SECTION 8.01. Company's Option to Effect Legal Defeasance or Covenant
Defeasance.................................................... 72
SECTION 8.02. Legal Defeasance and Discharge................................ 72
SECTION 8.03. Covenant Defeasance........................................... 73
SECTION 8.04. Conditions to Legal Defeasance or Covenant Defeasance......... 74
SECTION 8.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Miscellaneous Provisions........................... 75
SECTION 8.06. Reinstatement................................................. 75
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders.................................... 76
SECTION 9.02. With Consent of Holders....................................... 77
SECTION 9.03. Effect of Supplemental Indentures............................. 78
SECTION 9.04. Compliance with Trust Indenture Act........................... 78
SECTION 9.05. Revocation and Effect of Consents and Waivers................. 78
SECTION 9.06. Notation on or Exchange of Notes.............................. 78
SECTION 9.07. Trustee to Execute Supplemental Indentures.................... 78
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ARTICLE X
NOTE GUARANTEES; RELEASE OF NOTE GUARANTEES;
SECTION 10.01. Note Guarantees.............................................. 79
SECTION 10.02. Obligations of Guarantors Unconditional...................... 81
SECTION 10.03. Limitation of Guarantor's Liability.......................... 82
SECTION 10.04. Release of Note Guarantees................................... 82
SECTION 10.05. Application of Certain Terms and Provisions to Guarantors.... 82
SECTION 10.06. Additional Guarantors........................................ 83
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls................................. 83
SECTION 11.02. Notices...................................................... 83
SECTION 11.03. Certificate and Opinion as to Conditions Precedent........... 84
SECTION 11.04. Statements Required in Certificate or Opinion................ 84
SECTION 11.05. Rules by Trustee, Paying Agent and Registrar................. 84
SECTION 11.06. Payments on Business Days.................................... 84
SECTION 11.07. Governing Law, Submission to Jurisdiction.................... 84
SECTION 11.08. No Recourse Against Others................................... 86
SECTION 11.09. Successors................................................... 86
SECTION 11.10. Counterparts................................................. 86
SECTION 11.11. Table of Contents. Headings.................................. 86
SECTION 11.12. Severability................................................. 86
SECTION 11.13. Further Instruments and Acts................................. 86
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INDENTURE, dated as of September 26, 1997, between TKC ACQUISITION CORP., a
Tennessee corporation (the "Company") and SUNTRUST BANK, ATLANTA, a Georgia
banking corporation, as trustee hereunder (the "Trustee").
RECITALS
The Company has duly authorized the creation and issue of its 10 1/4%
Senior Notes Due 2007 (the "Initial Notes") of substantially the tenor and
amount hereinafter set forth and to provide therefor and for, if and when issued
in exchange for the Initial Notes pursuant to the Indenture and the Registration
Rights Agreement, the Company's 10 1/4% Senior Notes Due 2007 (the "Exchange
Notes," and together with the Initial Notes, the "Notes"), the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid instrument of the Company, in accordance with their respective terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in
consideration of the premises and the purchase of the Initial Notes by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture,
-----------
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular; and
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP.
"Acquired Indebtedness" means, with respect to any specified Person,
---------------------
(i) any Indebtedness or Disqualified Stock of any other Person existing at the
time such other Person is merged with or into or becomes a Subsidiary of such
specified Person, including, without limitation, Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Subsidiary of such specified Person, and (ii) Indebtedness secured
by a Lien encumbering any asset acquired by such specified Person, and in either
case for purposes of this Indenture shall be deemed to be incurred by such
specified Person at the time such other Person is merged with or into or becomes
a Subsidiary of such specified Person or at the time such asset is acquired by
such specified Person, as the case may be.
1
"Act" when used with respect to any Holder, has the meaning set forth
---
in Section 1.05 hereof.
"Additional Interest" has the meaning set forth in the Registration
-------------------
Rights Agreement.
"Affiliate" of any specified Person means (i) any other Person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any other Person who is a
director or executive officer of (a) such specified Person or (b) any Person
described in the preceding clause (i). For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of any class, or any series of
any class, of equity securities of a Person, whether or not voting, shall be
deemed to be control.
"Affiliate Transaction" has the meaning set forth in Section 4.16.
---------------------
"Agent Bank" means Sun Trust Bank, Atlanta and its successors under
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the Credit Agreement.
"Agent Members" has the meaning set forth in Section 2.05(a) hereof.
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"Asset Sale" means with respect to any Person, the sale, lease,
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conveyance or other disposition, that does not constitute a Restricted Payment
or an Investment, by such Person of any of its assets (including, without
limitation, by way of a Sale and Leaseback Transaction and including the
issuance, sale or transfer of any Equity Interests in any Subsidiary of the
Company) other than to the Company (including the receipt of proceeds of
insurance paid on account of the loss of or damage to any asset and awards of
compensation for any asset taken by condemnation, eminent domain or similar
proceeding, and including the receipt of proceeds of business interruption
insurance), in each case, in one or a series of related transactions; provided,
that notwithstanding the foregoing, the term "Asset Sale" shall not include:
(i) the sale, lease, conveyance, disposition or other transfer of
all or substantially all of the assets of the Company, in accordance with
Section 5.01 hereof;
(ii) the sale or lease of equipment, inventory, accounts receivable
or other assets in the ordinary course of business consistent with past
practice;
(iii) a transfer of assets by the Company to a Wholly-Owned
Subsidiary of the Company or by a Wholly-Owned Subsidiary of the Company to the
Company or to another Wholly-Owned Subsidiary of the Company;
(iv) an issuance of Equity Interests by a Wholly-Owned Subsidiary of
the Company to the Company or to another Wholly-Owned Subsidiary of the Company;
2
(v) the issuance by the Company of shares of its Capital Stock; or
(vi) the sale or other disposition of cash or Cash Equivalents.
"Asset Sale Offer" has the meaning set forth in Section 4.08(d)
----------------
hereof.
"Asset Sale Offer Amount" has the meaning set forth in Section 4.08(d)
-----------------------
hereof.
"Asset Sale Purchase Date" has the meaning set forth in Section
------------------------
4.08(e)(ii) hereof.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any other
--------------
applicable federal, state or foreign bankruptcy, insolvency or similar law as
now or hereafter constituted.
"Board" means the Board of Directors of the Company or any committee
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thereof duly authorized to act on behalf of such Board.
"Board Resolution" means a duly adopted resolution of the Board in
----------------
full force and effect at the time of determination and certified as such by the
Secretary or an Assistant Secretary of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday that is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law, executive
order or regulation to close.
"Capital Lease Obligation" means, at the time any determination
------------------------
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, capital stock,
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(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalent" means:
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(i) securities issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in
support thereof) having maturities not more than twelve months from the date of
acquisition;
(ii) U.S. dollar denominated (or foreign currency fully hedged) time
deposits, certificates of deposit, Eurodollar time deposits or Eurodollar
certificates of deposit of (a) any domestic commercial bank of recognized
standing having capital and surplus in excess of $500 million or (b) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank being
3
an "Approved Lender"), in each case with maturities of not more than twelve
months from the date of acquisition; and
(iii) commercial paper issued by any Approved Lender (or by the
parent company thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation rated A-2 (or the equivalent thereof) or better by S&P
or P-2 (or the equivalent thereof) or better by Moody's and maturing within
twelve months of the date of acquisition.
"Certificated Notes" means Notes in certificated form.
------------------
"Change of Control" means such time as either:
-----------------
(i) prior to the initial Public Equity Offering by the Company or
the Parent of its common stock, the Permitted Shareholders cease to be, directly
or indirectly, the beneficial owners in the aggregate, of more than 50% of the
voting power of the Voting Stock of the Company and of the Parent, in each case
on a fully-diluted basis, after giving effect to the conversion and exercise of
all outstanding warrants, options and other securities of the Company or the
Parent, as the case may be, convertible into or exercisable for Voting Stock of
the Company or the Parent, as the case may be (whether or not such securities
are then currently convertible or exercisable); or
(ii) after the initial Public Equity Offering by the Company or the
Parent of its common stock, (a) any "person" or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) (other than one or more of the
Permitted Shareholders) has become, directly or indirectly, the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), by way of merger, consolidation
or otherwise, of 35% or more of the voting power of the Voting Stock of the
Company or the Parent in each case on a fully-diluted basis, after giving effect
to the conversion and exercise of all outstanding warrants, options and other
securities of the Company or the Parent, as the case may be, convertible into or
exercisable for Voting Stock of the Company or the Parent, as the case may be
(whether or not such securities are then currently convertible or exercisable)
and (b) such person or group is or becomes, directly or indirectly, the
beneficial owner of a greater percentage of the voting power of the Voting Stock
of the Company or of the Parent, as the case may be, calculated on such fully-
diluted basis, than the percentage then beneficially owned by the Permitted
Shareholders; or
(iii) the Company or the Parent merges with or into another Person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person merges with or into
the Company or the Parent, in any such event pursuant to a transaction in which
the outstanding Voting Stock of the Company or the Parent is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (x) the outstanding Voting Stock of the Company or the Parent
is converted into or exchanged for (1) Voting Stock (other than Disqualified
Stock) of the surviving or transferee corporation and/or (2) cash, securities
and other property in an amount which could be paid by the Company as a
Restricted Payment under this Indenture and (y) immediately after such
4
transaction no "person" or "group" (within the meaning of Section 13(d) and
14(d) of the Exchange Act) (other than one or more of the Permitted
Shareholders) is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of (1) 35% or more of the voting power of the Voting
Stock of the surviving or transferee corporation on a fully diluted basis, after
giving effect to the conversion and exercise of all outstanding warrants,
options and other securities of such surviving or transferee corporation,
convertible into or exercisable for Voting Stock of such surviving or transferee
corporation (whether or not such securities are then currently convertible or
exercisable) and (2) a greater percentage of the voting power of the Voting
Stock of such surviving or transferee corporation calculated on such fully
diluted basis, than the percentage then beneficially owned by the Permitted
Shareholders; or
(iv) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted either the board of
directors of the Company or of the Parent, as the case may be, together with any
new members of such board of directors (a) whose election by such board of
directors or whose nomination for election by the stockholders of the Company or
the stockholders of the Parent, as the case may be, was approved by a vote of a
majority of the members of such board of directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved or (b) elected by the
Permitted Shareholders, cease for any reason to constitute a majority of the
directors of the Company or of the Parent, as the case may be, then in office.
"Change of Control Offer" has the meaning set forth in Section 4.07(a)
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hereof.
"Change of Control Payment Date" has the meaning set forth in Section
------------------------------
4.07(a) hereof.
"Change of Control Purchase Price" has the meaning set forth in
--------------------------------
Section 4.07(a) hereof.
"clearing agency" has the meaning set forth in Section 3(a)(23) of the
---------------
Exchange Act.
"Commission" means the United States Securities and Exchange
----------
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the party named as such in the preamble to this
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Indenture until a successor replaces it pursuant to the applicable provisions
hereof and, thereafter, means such successor.
"Company Order" means a written order signed in the name of the
-------------
Company by (i) the Chairman of the Board, Chief Executive Officer, President,
Chief Operating Officer or any
5
Vice President of the Company and (ii) the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Consolidated EBITDA" means, with respect to any Person for any
-------------------
period, the sum of, without duplication, (i) the Consolidated Net Income of such
Person and its Subsidiaries for such period, plus (ii) the Fixed Charges for
such period, plus (iii) amortization of deferred financing charges for such
period, plus (iv) provision for taxes based on income or profits for such period
(to the extent such income or profits were included in computing Consolidated
Net Income for such period), plus (v) consolidated depreciation, amortization
and other noncash charges of such Person and its Subsidiaries required to be
reflected as expenses on the books and records of such Person, minus (vi) cash
payments with respect to any nonrecurring, noncash charges previously added back
pursuant to clause (v), and excluding (vii) the impact of foreign currency
translations. Notwithstanding the foregoing, the provision for taxes based on
the income or profits of, and the depreciation and amortization and other
noncash charges of, a Subsidiary of a Person shall be added to Consolidated Net
Income to compute Consolidated EBITDA only to the extent (and in the same
proportion) that the Net Income of such Subsidiary was included in calculating
the Consolidated Net Income of such Person and only if a corresponding amount
would be permitted at the date of determination to be dividended to such Person
by such Subsidiary without any prior governmental approval (that has not been
obtained), and without direct or indirect restriction pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary or
its stockholders.
"Consolidated Net Income" means, with respect to any Person for any
-----------------------
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly-Owned Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its stockholders, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded, and (iv) the cumulative effect
of a change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
----------------------
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups subsequent
to the date of the Indenture in
6
the book value of any asset owned by such Person or a consolidated Subsidiary of
such Person (other than purchase accounting adjustments made, in connection with
any acquisition of any entity that becomes a consolidated Subsidiary of such
Person after the date of the Indenture, to the book value of the assets of such
entity), (y) all investments as of such date in unconsolidated Subsidiaries and
in Persons that are not Subsidiaries (except, in each case, Permitted
Investments), and (z) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means, with respect to any Person,
--------------------------------
the total amount of assets of such Person and its Subsidiaries (less applicable
depreciation, amortization and other valuable reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in accordance with GAAP), after deducting
therefrom all goodwill, copyrights, customer lists, tradenames, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the most recently available consolidated balance sheet of the
Person and its consolidated Subsidiaries, prepared in accordance with GAAP.
"Corporate Trust Office" means the principal office of the Trustee at
----------------------
which at any particular time its corporate trust business shall be principally
administered, which office is, at the date of execution of this Indenture, 00
Xxxxxxxx Xxxxxx, Xxxx 000X, Xxxxxxx, Xxxxxxx, Attention: Corporate Trust
Administration.
"Covenant Defeasance" has the meaning set forth in Section 8.03
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hereof.
"Credit Agreement" means that certain Credit Agreement, dated as of
----------------
the date of this Indenture, by and among the Company and SunTrust Bank, Atlanta
as Agent Bank, and the lenders parties thereto, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, increased, renewed,
refunded, replaced, restated or refinanced in whole or in part from time to
time.
"Custodian" means any receiver, trustee, assignee, liquidator,
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custodian or similar official under any Bankruptcy Law.
"Default" means any event that is, or with the passage of time or the
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giving of notice or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.11 hereof.
------------------
"Depositary" means The Depository Trust Company, its nominees, and
----------
their respective successors.
"Disqualified Stock" means (a) with respect to any Person, Capital
------------------
Stock of such Person that, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the Holder
7
thereof, in whole or in part, on or prior to the date which is one year after
the date on which the Notes mature and (b) with respect to any Subsidiary of
such Person (including with respect to any Subsidiary of the Company), any
Capital Stock.
"Eligible Assets" means another business or any substantial part of
---------------
another business or other long-term assets (including, without limitation, new
restaurant locations), in each case, in, or used or useful in, the same or a
similar line of business as the Company (exclusive of Xxxxxxx Aviation Co. and
Xxxxxxx Aviation Management Co.) was engaged in on the date of the Indenture or
any reasonable extensions or expansions thereof (including the Capital Stock of
another Person engaged in such business, provided such other Person is, or
immediately after giving effect to any such acquisition shall become, a Wholly-
Owned Subsidiary of the Company).
"Equity Interests" means Capital Stock and all warrants, options or
----------------
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock), whether outstanding prior
to, on or after the date of this Indenture.
"Event of Default" has the meaning set forth in Section 6.01 hereof.
----------------
"Excess Proceeds" has the meaning set forth in Section 4.08(c) hereof.
---------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder.
"Exchange Certificated Notes" has the meaning set forth in Section
---------------------------
2.01(d) hereof.
"Exchange Global Note" has the meaning set forth in Section 2.01(d)
--------------------
hereof.
"Exchange Notes" has the meaning set forth in the Recitals hereto and
--------------
more particularly means any of the Notes authenticated and delivered under this
Indenture pursuant to the Registered Exchange Offer.
"Exempt Affiliate Transactions" means (a) transactions between or
-----------------------------
among the Company and/or its Wholly-Owned Subsidiaries, (b) advances to officers
of the Company or any Subsidiary of the Company in the ordinary course of
business to provide for the payment of reasonable expenses incurred by such
persons in the performance of their responsibilities to the Company or such
Subsidiary or in connection with any relocation, (c) fees and compensation paid
to and indemnity provided on behalf of directors, officers or employees of the
Company or any Subsidiary of the Company in the ordinary course of business, (d)
any employment agreement that is in effect on the date of this Indenture and any
such agreement entered into by the Company or a Subsidiary of the Company after
the date of this Indenture in the ordinary course of business of the Company or
such Subsidiary and (e) any Restricted Payment that is not prohibited by Section
4.10 hereof.
"Exempt Asset Sale" means an Asset Sale on or after the date of this
-----------------
Indenture the Net Proceeds of which plus the Net Proceeds of all other Asset
Sales made in the same fiscal year (but, in all cases, after the date of this
Indenture) do not exceed $2.5 million.
8
"Existing Indebtedness" means the Indebtedness of the Company and its
---------------------
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture, until such amounts are repaid.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
---------------------------
period, the ratio of the Consolidated EBITDA of such Person and its Subsidiaries
for such period to the Fixed Charges of such Person and its Subsidiaries for
such period. In the event that the Company or any of its Subsidiaries incurs,
assumes, guarantees or repays or redeems any Indebtedness (other than revolving
credit borrowings) or issues or redeems preferred stock subsequent to the
commencement of the four-quarter reference period for which the Fixed Charge
Coverage Ratio is being calculated but on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable four-quarter
reference period. For purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
EBITDA for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated EBITDA attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the referent Person or any of its
Subsidiaries following the Calculation Date.
"Fixed Charges" means, with respect to any Person for any period, the
-------------
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Subsidiaries for such period (net of any interest income)
including, without limitation, amortization of original issue discount, noncash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations, but excluding amortization of deferred
financing charges for such period and (ii) the consolidated interest expense of
such Person and its Subsidiaries that was capitalized during such period, and
(iii) any interest expense on Indebtedness of another Person that is guaranteed
by such Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such guarantee or Lien is
called upon) and (iv) the product of (a) all cash dividend payments (and noncash
dividend payments in the case of a Person that is a Subsidiary) on any series of
preferred stock of such Person payable to a party other than the Company or a
Wholly-Owned Subsidiary, multiplied by (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined federal,
state and local statutory tax
9
rate for taxes based on the income or profits of such Person, expressed as a
decimal, on a consolidated basis and in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession of the United States, that are applicable to the circumstances as of
the date of determination; provided that, except as specifically provided in
-------- ----
this Indenture, all calculations made for purposes of determining compliance
with the covenants set forth in Article IV and Section 5.01 of this Indenture
shall use GAAP as in effect on the date of this Indenture for financial
statements for fiscal years ending on or after December 31, 1996.
"Global Notes" means the Initial Global Note and the Exchange Global
------------
Note.
"guarantee" means a guarantee (other than by endorsement of negotiable
---------
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means each Subsidiary of the Company formed or acquired
---------
(and each other Person that becomes a Subsidiary of the Company) after the date
of this Indenture, provided that any Person constituting a Guarantor as
--------
described above shall cease to constitute a Guarantor when its guarantee is
released in accordance with the terms of this Indenture.
"Hedging Obligations" means, with respect to any Person, the
-------------------
obligations of such Person entered into in the ordinary course of business under
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and other similar financial agreements or arrangements
designed to protect such Person against, or manage the exposure of such Person
to, fluctuations in interest rates.
"Holder" means (i) in the case of any Certificated Note, the Person in
------
whose name such Certificated Note is registered on the Note Register and (ii) in
the case of any Global Note, the Depositary.
"incur" shall have the meaning specified in Section 4.09(a) hereof.
-----
"Indebtedness" means, with respect to any Person, any indebtedness of
------------
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations, or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable
incurred in the ordinary course of business, if and to the extent any of the
foregoing indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, as well as all indebtedness of others
10
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included,
indebtedness of others that is guaranteed by such Person that is recourse to
such Person or that is otherwise its legal liability.
"Indenture" means this instrument as originally executed or as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof;
and shall include, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument, and any such supplemental indenture,
respectively.
"independent financial advisor" means a nationally recognized
-----------------------------
investment banking firm that is, in the reasonable judgment of the Board,
qualified to perform the task for which such firm has been engaged and
disinterested and independent with respect to the Company.
"Initial Certificated Notes" has the meaning set forth in Section
--------------------------
2.01(c) hereof.
"Initial Global Note" has the meaning set forth in Section 2.01(c)
-------------------
hereof.
"Initial Notes" has the meaning set forth in the Recitals hereto and,
-------------
more particularly, means any of the Notes authenticated and delivered under this
Indenture other than pursuant to the Registered Exchange Offer or in exchange
for Exchange Notes.
"Initial Purchaser" means UBS Securities LLC.
-----------------
"Institutional Accredited Investors" means institutional "accredited
----------------------------------
investors," as defined in Rule 501(a)(l), (2), (3) or (7) under the Securities
Act, other than Qualified Institutional Buyers.
"Interest Payment Date" means each semiannual interest payment date on
---------------------
April 1 and October 1 of each year, commencing April 1, 1998, in respect of the
Notes.
"Investments" means, with respect to any Person, all investments by
-----------
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or other extensions of credit or capital contributions to other Persons
(by means of any transfer of cash or other property but excluding advances to
officers of the type specified in clause (b) of the definition of Exempt
Affiliate Transactions), or any purchases, acquisitions for consideration of
Indebtedness, Equity Interests or other securities or ownership by such Person
of any Capital Stock, bonds, notes, debentures or other securities (including,
without limitation, any interests in a partnership or joint venture) issued or
owned by any other Person, and all other items that are or would be classified
as investments on a balance sheet prepared in accordance with GAAP; provided
that an acquisition by the Company for consideration consisting of common equity
securities of the Company shall not be deemed to be an Investment.
"Legal Defeasance" has the meaning set forth in Section 8.02 hereof.
----------------
11
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Maturity" means, when used with respect to a Note, the date on which
--------
the principal of such Note becomes due and payable as provided therein or in
this Indenture, whether on the date specified in such Note as the fixed date on
which the principal of such Note is due and payable, on the Change of Control
Payment Date or Asset Sale Purchase Date, or by declaration of acceleration,
call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc., or if Xxxxx'x
-------
Investors Service, Inc. shall cease rating the specified debt securities and
such ratings business with respect thereto shall have been transferred to a
successor Person, such successor Person; provided that if Xxxxx'x Investors
--------
Service, Inc. ceases rating the specified debt securities and its ratings
business with respect thereto shall not have been transferred to any successor
Person or such successor Person is S&P, then "Moody's" shall mean any other
nationally recognized rating agency (other than S&P) that rates the specified
debt securities and that shall have been designated by the Company in an
Officer's Certificate.
"Net Income" means, with respect to any Person for any period, the net
----------
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to Sale and Leaseback Transactions) or
(b) the disposition of any securities by such Person or any of its Subsidiaries
or the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not loss),
together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
------------
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
noncash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions), taxes paid or payable as a
result thereof, and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-U.S. Person" means any Person who is not a "U.S. person," as
---------------
defined in Rule 902(o) under the Securities Act.
"Note Guarantee" means the guarantee of the Notes by each Guarantor
--------------
under Article X hereof.
12
"Note Register" has the meaning set forth in Section 2.03 hereof.
-------------
"Notes" has the meaning set forth in the Recitals hereto and more
-----
particularly means any of the Notes authenticated and delivered under this
Indenture.
"Obligations" means any principal, interest, penalties, premiums,
-----------
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by (i) the Chairman
---------------------
of the Board, the Chief Executive Officer, President, Chief Operating Officer or
any Vice President of the Company and (ii) the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee, which certificate shall comply with
the provisions of Section 11.04 hereof; provided that any Officers' Certificate
-------- ----
delivered pursuant to the first paragraph of Section 4.20 hereof shall be signed
by the Chief Executive Officer or the Chief Financial Officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel (who
------------------
may be counsel to the Company or the Trustee) who is acceptable to the Trustee,
which opinion shall comply with the provisions of Section 11.04 hereof; provided
--------
that any Opinion of Counsel delivered pursuant to Section 8.04 hereof shall not
----
be rendered by an employee of the Company or any of its Subsidiaries.
"Parent" means Port Royal Holdings, Inc., a Georgia corporation and
------
100% owner of the Company.
"pari passu," as applied to the ranking of any Indebtedness of a
---- -----
Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
subordinate in right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to make
------------
payments premium, if any, or interest with respect to the Notes on behalf of the
Company.
"Permitted Indebtedness" means
----------------------
(i) the incurrence by the Company of Indebtedness under the Credit
Agreement and the incurrence by Subsidiaries of the Company of guarantees
thereof in an aggregate principal amount at any time outstanding (with letters
of credit being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Subsidiaries thereunder) not to exceed $25.0
million, less the aggregate amount of all Net Proceeds of Asset Sales applied to
permanently reduce the outstanding amount or the commitments with respect to
such Indebtedness pursuant to the covenant described in Section 4.08 hereof;
13
(ii) the incurrence by the Company and any Guarantors of
Indebtedness represented by the Notes and the Note Guarantees;
(iii) the incurrence by the Company or any of its Subsidiaries of
Indebtedness represented by Capital Lease Obligations (whether or not incurred
pursuant to Sale and Leaseback Transactions), mortgage financings or Purchase
Money Obligations, in each case incurred for the purpose of financing all or any
part of the purchase price or cost of construction or improvement of property
used in the business of the Company or such Subsidiary (provided that such
Indebtedness is incurred within 180 days of the date such property is purchased
or the date on which such construction of or improvement to such property is
commenced) or any Permitted Refinancing Indebtedness thereof (provided that the
requirements of clause (ii) of the definition of Permitted Refinancing
Indebtedness need not be met for the purposes of this clause (iii)) in an
aggregate principal amount at any time outstanding not to exceed the greater of
(x) $15.0 million or (y) 10.0% of Consolidated Net Tangible Assets;
(iv) the incurrence by the Company of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund, any Indebtedness permitted under
the Fixed Charge Coverage Ratio Test described in the covenant set forth in
Section 4.09 hereof;
(v) the incurrence by the Company or any of its Wholly-Owned
Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Wholly-Owned Subsidiaries or between or among any Wholly-Owned
Subsidiaries; provided, however, that (a) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a Person
other than the Company or a Wholly-Owned Subsidiary of the Company and (b) any
sale or other transfer of any such Indebtedness to a Person that is not either
the Company or a Wholly-Owned Subsidiary of the Company shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such
Subsidiary, as the case may be;
(vi) the incurrence by the Company of Hedging Obligations; and
(vii) the incurrence by the Company of Indebtedness (in addition to
Indebtedness permitted by any other clause of this paragraph) in an aggregate
principal amount at any time outstanding not to exceed $10.0 million plus the
aggregate amount of all Net Proceeds of Asset Sales applied to permanently
reduce the outstanding amount or commitments with respect to Indebtedness under
the Credit Agreement pursuant to the covenant described in Section 4.08 hereof.
"Permitted Investments" means:
---------------------
(i) any Investments in the Company;
(ii) any Investments in Cash Equivalents;
(iii) Investments made as a result of the receipt of noncash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.08 hereof.
14
(iv) Investments in property or assets to be used in any line of
business in which the Company or any of its Subsidiaries was engaged on the date
of this Indenture or any reasonable extensions or expansions thereof; and
(v) Investments in Wholly-Owned Subsidiaries of the Company and any
entity that (a) is engaged in the same or a similar line of business as the
Company or any of its Subsidiaries was engaged in on the date of this Indenture
or any reasonable extensions or expansions thereof, and (b) as a result of such
Investment, becomes a Wholly-Owned Subsidiary of the Company.
"Permitted Liens" means with respect to any Person,
---------------
(i) pledges or deposits by such person under workmen's compensation
laws, unemployment insurance laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or for the payment of rent,
in each case incurred in the ordinary course of business;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanic's Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings; or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall be proceeding
with an appeal or other proceedings for review;
(c) Liens for property taxes not yet subject to penalties for non-
payment or which are being contested in good faith and by appropriate
proceedings;
(d) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business; provided, however, that such letters of credit
do not constitute Indebtedness;
(e) survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real properties or liens
incidental to the conduct of the business of such Person or the ownership of its
properties which were not incurred in connection with Indebtedness and which do
not in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;
(f) Liens securing Indebtedness (including Indebtedness described
in clause (iii) of the definition of Permitted Indebtedness) incurred to finance
the construction, purchase or lease of, or repairs, improvements or additions
to, property; provided, however, that the Lien may not extend to any other
property owned by the Company or any Subsidiary at the time the Lien is
incurred, and the Indebtedness secured by the Lien may not be issued more than
180 days after the later of the acquisition or construction of the property
subject to the Lien;
15
(g) Liens to secure Indebtedness described in clause (i) of the
definition of Permitted Indebtedness;
(h) Liens existing on the date of this Indenture; (i) Liens on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, that any such Lien may not extend to any other
property owned by the Company or any Subsidiary;
(j) Liens on property at the time the Company or a Subsidiary
acquires the property including any acquisition by means of a merger or
consolidation with or into the Company or a Subsidiary; provided, however, that
the Liens may not extend to any other property owned by the Company or any
Subsidiary;
(k) Liens securing Indebtedness or other obligations of a
Subsidiary owing to the Company or a Wholly-Owned Subsidiary;
(l) Liens securing Hedging Obligations so long as the related
Indebtedness is, and is permitted to be under this Indenture, secured by a Lien
on the same property securing such Hedging Obligations; and
(m) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions, renewals or
replacements) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (h), (i) and (j); provided, however,
that (x) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (f), (h), (i) or
(j) at the time the original Lien became a Permitted Lien under the Indenture
and (B) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or replacement.
Clause (m) shall not be deemed to limit the provisions of clauses (a) through
(e), (g) or (k).
"Permitted Refinancing Indebtedness" means any Indebtedness of the
----------------------------------
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Subsidiaries; provided that:
--------
(i) the principal amount of such Permitted Refinancing Indebtedness
does not exceed the principal amount of the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith);
(ii) such Permitted Refinancing Indebtedness has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of; and is subordinated in
16
right of payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(iv) such Indebtedness is incurred either by the Company or by the
Subsidiary of the Company that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Permitted Shareholders" means (i) those Persons who "beneficially
----------------------
own" (as such term is defined in Rules 13d-3 and 13d-5 under the Exchange Act)
Voting Stock of the Parent as of the Issue Date; (ii) the spouses parents,
siblings, descendants (including children or grandchildren) of such Persons;
(iii) in the event of the incompetence or death of any of the Persons described
in clause (i) or (ii), such Person's estate, executor, administrator, committee
or other personal representative in each case who at any particular date shall
beneficially own or have the right to acquire, directly or indirectly, Voting
Stock of the Parent; (iv) any trusts created for the sole benefit of the Persons
described in clause (i),(ii) or (iii) or any trust for the benefit of such trust
or (v) any Person of which any of the Persons described in clause (i), (ii) or
(iii) (x) "beneficially owns" (as such term is defined in Rules 13d-3 and 13d-5
under the Exchange Act) on a fully-diluted basis all of the Voting Stock of such
Person or (y) is the sole trustee or general partner, or otherwise has the sole
power to manage the business and affairs, of such Person.
"Person" means any individual, corporation, limited or general
------
partnership, joint venture, association, joint stock company, trust, limited
liability company, unincorporated organization, or government or any agency or
political subdivision thereof.
"Private Placement Legend" means the legend in the form set forth in
------------------------
Section 2.01(e)(i) hereof.
"pro forma" means, with respect to any calculation made or required to
---------
be made pursuant to the terms hereof, a calculation in accordance with Article
11 of Regulation S-X promulgated under the Securities Act (to the extent
applicable), as interpreted in good faith by the Board after consultation with
the independent certified public accountants of the Company, or otherwise a
calculation made in good faith by the Board after consultation with the
independent certified public accountants of the Company, as the case may be.
"Property" means, with respect to any Person, any interest of such
--------
Person in any kind of property or asset, whether real, personal or mixed,
tangible or intangible, excluding Capital Stock in any other Person.
"Public Equity Offering" means an underwritten primary public offering
----------------------
of the common stock of the Company or of the common stock of the Parent pursuant
to an effective registration statement filed with the Commission in accordance
with the Securities Act (whether alone or in conjunction with a secondary public
offering).
"Purchase Agreement" means the purchase agreement relating to the
------------------
Notes, dated September 18, 1997, between the Company and the Initial Purchaser.
17
"Purchase Money Obligations" of any Person means any obligations of
--------------------------
such Person to any seller or any other Person incurred or assumed to finance the
construction and/or acquisition of real or personal property to be used in the
business of such Person or any of its Subsidiaries in an amount that is not more
than 100% of the cost of such property, and incurred within 180 days after the
date of such construction or acquisition (excluding accounts payable to trade
creditors incurred in the ordinary course of business).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
---
"Record Date" means, for the interest payable on any Interest Payment
-----------
Date, the date specified in Section 2.11 hereof.
"Redemption Date" means, when used with respect to any Note or part
---------------
thereof to be redeemed hereunder, the date fixed for redemption of such Notes
pursuant to the terms of the Notes and this Indenture.
"Redemption Price" means, when used with respect to any Note or part
----------------
thereof to be redeemed hereunder, the price fixed for redemption of such Note
pursuant to the terms of the Notes and this Indenture, plus accrued and unpaid
interest thereon, if any, and Additional Interest, if any, to the Redemption
Date.
"Registered Exchange Offer" has the meaning set forth in the
-------------------------
Registration Rights Agreement.
"Registrar" has the meaning set forth in Section 2.03 hereof.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement relating to the Notes, dated September 26, 1997, between the Company
and the Initial Purchaser, in substantially the form of Exhibit J hereto.
"Regulation D" means Regulation D under the Securities Act (including
------------
any successor regulation thereto), as it may be amended from time to time.
"Regulation S" means Regulation S under the Securities Act (including
------------
any successor regulation thereto), as it may be amended from time to time.
"Regulation S-X" means Regulation S-X under the Securities Act
--------------
(including any successor regulation thereto), as it may be amended from time to
time.
"Representative" means the trustee, agent or representative (if any)
--------------
for an issue of Senior Indebtedness or, if no such trustee, agent or
representative exists, the holder thereof.
"Resolution" means a copy of a resolution certified by the secretary
----------
or an assistant secretary of the Company to have been duly adopted by the Board
and to be in full force and effect on the date of such certification, delivered
to the Trustee.
"Restricted Payment" has the meaning set forth in Section 4.10 hereof.
------------------
18
"Rule 144" means Rule 144 under the Securities Act (including any
--------
successor regulation thereto), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
---------
successor regulation thereto), as it may be amended from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill
---
Corporation, or, if Standard & Poor's Ratings Group shall cease rating the
specified debt securities and such ratings business with respect thereto shall
have been transferred to a successor Person, such successor Person; provided
--------
that if Standard & Poor's Ratings Group ceases rating the specified debt
----
securities and its ratings business with respect thereto shall not have been
transferred to any successor Person or such successor Person is Xxxxx'x, then
"S&P" shall mean any other nationally recognized rating agency (other than
Xxxxx'x) that rates the specified debt securities and that shall have been
designated by the Company in an Officers' Certificate.
"Sale and Leaseback Transaction" means any direct or indirect
------------------------------
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned by
the Company or any Subsidiary as of the date of the Indenture or later acquired,
which has been or is to be sold or transferred by the Company or such Subsidiary
to such Person or to any other Person from whom funds have been or are to be
advanced by such Person on the security of such property.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder.
"Senior Bank Debt" means the Obligations outstanding under the Credit
----------------
Agreement.
"Senior Indebtedness" means, with respect to the Company, (i) the
-------------------
Notes, (ii) the Senior Bank Debt and (iii) any other Indebtedness permitted to
be incurred by the Company under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is subordinated in right of payment to any Indebtedness for money borrowed.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
will not include (w) any liability for federal, state, local or other taxes owed
or owing by the Company, (x) any Indebtedness of the Company to any of its
Subsidiaries or other Affiliates, (y) any trade payables or (z) any Indebtedness
to the extent that it is incurred in violation of this Indenture (other than
Senior Bank Debt incurred in accordance with the terms of the Credit Agreement
as in effect on the date of the initial issuance of the Notes). "Senior
Indebtedness" means, with respect to any Guarantor, any guarantee by such
Guarantor of Senior Indebtedness of the Company.
"Shelf Registration Statement" has the meaning set forth in the
----------------------------
Registration Rights Agreement.
"Special Record Date" means a date fixed by the Trustee pursuant to
-------------------
Section 2.11 for the payment of Defaulted Interest.
19
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred), and, when used with respect
to any installment of interest on such security, the fixed date on which such
installment of interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
----------
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Temporary Notes" has the meaning set forth in Section 2.09 hereof.
---------------
"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
of such Person in connection with the acquisition of goods or services.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
-------------------
(S)(S) 77aaa-771(bbb) as in effect on the date of this Indenture except as
required by Section 9.04 hereof or if the Indenture is qualified under the Trust
Indenture Act, then as of the date of such qualification; provided that in the
--------
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939, as so amended.
"Trust Officer" means any officer or assistant officer of the Trustee
-------------
(or a successor trustee) assigned by the Trustee (or a successor trustee) to
administer this Indenture.
"Trustee" means the party named as such in the preamble to this
-------
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and, thereafter, means such successor Trustee.
"U.S. Government Obligations" means:
---------------------------
(i) securities that are (a) direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof; and
20
(ii) depositary receipts issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in clause (i) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal or interest on any U.S. Government Obligation
which is so specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
or interest of the U.S. Government Obligation evidenced by such depositary
receipt.
"Voting Stock" of a corporation means all classes of Capital Stock of
------------
such corporation then outstanding and normally entitled to vote in the election
of directors.
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payments at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of such
-----------------------
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly-Owned Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
(a) This Indenture is expressly made subject to the Trust Indenture Act as if
this Indenture were, on the Date hereof, subject to the Trust Indenture Act
under the provisions of such statute and such provisions are incorporated by
reference in this Indenture.
(b) Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms incorporated by
reference in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors, or other obligors on the Notes, if any.
21
All other Trust Indenture Act terms used or incorporated by reference
in this Indenture that are defined by the Trust Indenture Act, defined by Trust
Indenture Act reference to another statute or defined by Commission rule have
the meanings assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
---------------------
requires:
(a) the words "herein," "hereof' and "hereunder," and other words of
similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(b) "or" is not exclusive;
(c) "including" means "including without limitation";
(d) 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
(e) when used with respect to the Notes, the term "principal amount"
shall mean the principal amount thereof at the Stated Maturity of such
principal amount.
SECTION 1.04. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company, or such Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company, or such Guarantor, as the case may be, unless such officer or counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.05. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken
22
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the
Company, and the Guarantors, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by an acknowledgment of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of the signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register, and
the ownership of beneficial interests in the Global Note shall be proved by the
records of the Depositary.
(d) The Trustee may require such additional proof of any matter
referred to in this Section as it may reasonably request under the
circumstances.
SECTION 1.06. Satisfaction and Discharge. This Indenture shall cease
--------------------------
to be of further effect (except as to the rights of Holders under Sections 2.06,
2.07, 2.09, 4.02, 4.03 and 4.04 hereof) and the Trustee, on receipt of a Company
Order requesting such action and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when (a) either (i) all outstanding Notes have been delivered to the Trustee for
cancellation or (ii) such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire indebtedness on
such Notes, for principal, premium, if any, and interest and Additional
Interest, if any, to the date of such deposit together with irrevocable
instructions from the Company in form and substance satisfactory to the Trustee
directing the Trustee to apply such funds to the payment thereof; (b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and (c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all factual and legal
conditions precedent, respectively, herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Section 1.06, the obligations of the Company and any Guarantors to the
Trustee under Section 7.07 hereof, and, if money shall have been deposited with
the Trustee
23
in trust for the Holders pursuant to this Section 1.06, the obligations of the
Trustee under this Section 1.06 and Section 4.03 hereof shall survive.
All money deposited with the Trustee pursuant to this Section 1.06
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent, to the Persons entitled thereto, of the principal, premium, if
any, and interest and Additional Interest, if any, for the payment of which such
money has been deposited with the Trustee. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Section 1.06 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 and any Guarantors'
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Section 1.06 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 Section 1.06; provided, that if
--------
the Company or any Guarantors have made any payment on any Notes because of the
reinstatement of its obligations, the Company or such Guarantors, as the case
may be, shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the cash or U.S. Government Obligations held by the
Trustee or Paying Agent.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charges imposed on or assessed against the U.S. Government Obligations
deposited pursuant to this Section 1.06 or on the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of outstanding Notes.
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating. (a) The Initial Notes and the
---------------
certificate of authentication of the Trustee thereon shall be substantially in
the form of Exhibit A or Exhibit B hereto, as applicable, which are hereby
incorporated in and expressly made a part of this Indenture. The Exchange Notes
and the certificate of authentication of the Trustee thereon shall be
substantially in the form of Exhibit C or Exhibit D hereto, as applicable, which
are hereby incorporated in and expressly made a part of this Indenture.
(b) The Notes may have such letters, numbers or other marks of
identification and such legends and endorsements, stamped, printed, lithographed
or engraved thereon, (i) as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, (ii) as may be required to
comply with this Indenture, any law or any rule of any securities exchange on
which the Notes may be listed and (iii) as may be necessary to conform to
customary usage. Each Note shall be dated the date of its authentication by the
Trustee. The Notes shall be issued only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof; provided
--------
that Initial Certificated Notes originally purchased by or transferred to
Institutional Accredited Investors shall be subject to a minimum denomination of
$250,000. Definitive Notes shall be typed, printed, lithographed or engraved or
produced by any combination of such methods or produced in any other manner
permitted by the rules of any
24
securities exchange on which such Notes may be listed, all as determined by the
officers of the Company executing such Notes, as evidenced by their execution of
such Notes.
(c) Initial Notes offered and sold to QIBs in reliance on Rule 144A as
provided in the Purchase Agreement shall be issued initially in the form of a
single, permanent global note in definitive, fully registered form, without
coupons, substantially in the form set forth in Exhibit A hereto and shall bear
the legends set forth in Section 2.01(e)(i), Section 2.01(e)(ii) and Section
2.0l(e)(iii) hereof (the "Initial Global Note") or in the form of an Initial
Certificated Note (as defined below). Notwithstanding any other provision of
this Indenture, at the written request of the Holder of such Initial
Certificated Note to the Company and the Trustee, the Company shall execute and
the Trustee shall authenticate in exchange for such Initial Certificated Note an
Initial Global Note in like aggregate principal amount and deliver such Initial
Global Note pursuant to the instructions of such Holder. Upon issuance, such
Initial Global Note shall be registered in the name of the Depositary or its
nominee, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and deposited on behalf of the purchasers of the Initial
Notes represented thereby with the Trustee at its Corporate Trust Office, as
custodian for the Depositary. Owners of beneficial interests in the Initial
Global Note shall be entitled to receive physical delivery of Certificated Notes
pursuant to Section 2.06(b)(ii). Initial Notes offered and sold to
Institutional Accredited Investors as provided in the Purchase Agreement shall
be issued in the form of a note in definitive, fully registered form, without
coupons, substantially in the form set forth in Exhibit B hereto and shall bear
the legend set forth in Section 2.01(e)(i) hereof, except as provided in Section
2.06(a) (such Notes together with interests in the Initial Global Note that are
subsequently transferred or exchanged pursuant to Sections 2.06(b)(ii),
2.06(b)(iii), 2.06(b)(iv) or 2.06(c), the "Initial Certificated Notes"). Upon
issuance, any such Initial Certificated Note shall be duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Upon transfer
of any Initial Certificated Note to a QIB pursuant to Section 2.06(b)(i) hereof,
such Initial Certificated Note may be exchanged for a beneficial interest in the
Initial Global Note, except as provided in Section 2.06(c).
(d) If the Initial Global Note is tendered in a Registered Exchange
Offer, it shall be exchanged for a single, permanent global note in definitive,
fully registered form, without coupons, substantially in the form set forth in
Exhibit C hereto and shall bear the legends set forth in Section 2.01(e)(ii) and
Section 2.01(e)(iv) hereof (the "Exchange Global Note"). Upon issuance, such
Exchange Global Note shall be registered in the name of the Depositary or its
nominee, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and deposited on behalf of the beneficial owners of the
Exchange Notes represented thereby in accordance with the procedures of the
Depositary.
If Initial Certificated Notes are tendered in a Registered Exchange
Offer, they will be exchanged for Certificated Notes in definitive, fully
registered form, without coupons and without legends, substantially in the form
set forth in Exhibit D hereto ("Exchange Certificated Notes"). Upon issuance,
any such Exchange Certificated Note shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
At the option of the Holder thereof, Exchange Notes may be held either
in the form of a beneficial interest in the Exchange Global Note or as Exchange
Certificated Notes.
25
(e) The following legends shall appear on each Global Note and each
Certificated Note as indicated below:
(i) Except as provided in Section 2.06(a) hereof; the Initial
Global Note and each Initial Certificated Note shall bear the following
legend (the "Private Placement Legend") on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION.
(ii) Each Global Note shall bear the following legend on the face
thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO TKC ACQUISITION CORP. OR A SUCCESSOR THEREOF OR THE REGISTRAR
FOR REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(iii) The Initial Global Note shall bear the following legend on the
face thereof:
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN
PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.06 OF THE INDENTURE, DATED AS OF SEPTEMBER 26, 1997, AMONG TKC
ACQUISITION CORP., AS ISSUER AND SUNTRUST BANK, ATLANTA, AS TRUSTEE, PURSUANT TO
WHICH THIS NOTE WAS ISSUED.
(iv) The Exchange Global Note shall bear the following legend on the
face thereof:
26
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN
PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE.
SECTION 2.02. Execution and Authentication. The Notes may be
----------------------------
issued in two series, a series of Initial Notes and a series of Exchange Notes.
The aggregate principal amount of Notes outstanding at any time shall not exceed
$100,000,000 except as provided in Section 2.07 hereof. The Notes shall be
executed on behalf of the Company by its Chief Executive Officer, President,
Chief Operating Officer, Treasurer or any Vice President, under its corporate
seal reproduced or imprinted on the Notes by facsimile or otherwise, and shall
be attested by the Company's Secretary or one of its Assistant Secretaries, in
each case by manual or facsimile signature.
The Notes shall be authenticated by manual signature of an authorized
signatory of the Trustee and shall not be valid for any purpose unless so
authenticated.
In case any officer of the Company whose signature shall have been
placed upon any of the Notes shall cease to be such officer of the Company
before authentication of such Notes by the Trustee and the issuance and delivery
thereof, such Notes may, nevertheless, be authenticated by the Trustee and
issued and delivered with the same force and effect as though such Person had
not ceased to be such officer of the Company.
The Trustee shall, upon receipt of a Company Order requesting such
action, authenticate (a) Initial Notes for original issue up to the aggregate
principal amount not to exceed $100,000,000 outstanding at any given time, or
(b) Exchange Notes for issue pursuant to a Registered Exchange Offer for Initial
Notes in a principal amount equal to the principal amount of Initial Notes
exchanged in such Registered Exchange Offer. Such Company Order shall specify
the amount of Notes to be authenticated and the date on which, in the case of
clause (a) above, the Initial Notes or, in the case of clause (b) above, the
Exchange Notes, are to be authenticated and shall further provide instructions
concerning registration, amounts for each Holder and delivery.
Upon the occurrence of any event specified in Section 2.06(c) hereof,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to each beneficial owner identified by the Depositary, in exchange
for such beneficial owner's interest in the Initial Global Note or Exchange
Global Note, as the case may be, Initial Certificated Notes or Exchange
Certificated Notes, as the case may be, representing Notes theretofore
represented by the Initial Global Note or Exchange Global Note, as the case may
be.
A Note shall not be valid or entitled to any benefits under this
Indenture or obligatory for any purpose unless executed by the Company and
authenticated by the manual signature of one of the authorized signatories of
the Trustee as provided herein. Such signature upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered under this Indenture and is entitled to the benefits
of this Indenture.
27
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate the Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Any authenticating agent of the
Trustee shall have the same rights hereunder as any Registrar or Paying Agent.
Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Note to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 1.04 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued and sold by the Company, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
SECTION 2.03. Registrar and Paying Agent. The Company shall
--------------------------
maintain, pursuant to Section 4.02 hereof, an office or agency where the Notes
may be presented for registration of transfer or for exchange (the "Registrar"),
an office or agency where Notes may be presented for payment (the "Paying
Agent") and an office or agency where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served.
The Company shall cause to be kept at such office a register (the
"Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes entitled to be registered or transferred as provided herein.
The Trustee, at its Corporate Trust Office, is initially appointed Registrar for
the purpose of registering Notes and transfers of Notes as herein provided. The
Company may, upon written notice to the Trustee, change the designation of the
Trustee as Registrar and appoint another Person to act as Registrar for purposes
of this Indenture. If any Person other than the Trustee acts as Registrar, the
Trustee shall have the right at any time, upon reasonable notice, to inspect or
examine the Note Register and to make such inquiries of the Registrar as the
Trustee shall in its discretion deem necessary or desirable in performing its
duties hereunder.
The Company shall enter into an appropriate agency agreement with any
Person designated by the Company as Registrar or Paying Agent that is not a
party to this Indenture, which agreement shall incorporate the provisions of the
Trust Indenture Act and shall implement the provisions of this Indenture that
relate to such Registrar or Paying Agent. Prior to the designation of any such
Person, the Company shall, by written notice (which notice shall include the
name and address of such Person), inform the Trustee of such designation. The
Company initially appoints the Trustee, at its Corporate Trust Office, as Paying
Agent and agent for service of demands and notices in connection with the Notes,
until such time as the Trustee has resigned or a successor has been appointed.
If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
Subject to Section 2.06 hereof, upon surrender for registration of
transfer of any Note at an office or agency of the Company designated for such
purpose, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the
28
designated transferee or transferees, one or more new Initial Notes or Exchange
Notes, as the case may be, of any authorized denomination or denominations, of
like tenor and aggregate principal amount, all as requested by the transferor.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Trustee or the Registrar)
be duly endorsed, or be accompanied by a duly executed instrument of transfer in
form satisfactory to the Company, the Trustee and the Registrar, by the Holder
thereof or such Holder's attorney duly authorized in writing.
SECTION 2.04. Paying Agent to Hold Money in Trust. Prior to
-----------------------------------
10:00 a.m. New York City time on each due date of the principal, premium, if
any, or any payment of interest or Additional Interest, if any, with respect to
any Note, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal, premium, if any, or interest or Additional Interest, if any,
when so becoming due.
The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by such Paying Agent for the payment of
principal, premium, if any, or interest or Additional Interest, if any, with
respect to the Notes, shall notify the Trustee of any default by the Company in
making any such payment and at any time during the continuance of any such
default, upon the written request of the Trustee, shall forthwith pay to the
Trustee all sums held in trust by such Paying Agent.
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 such Paying
Agent. Upon complying with this Section 2.04, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.05 Global Notes. (a) So long as a Global Note is
------------
registered in the name of the Depositary or its nominee, members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Indenture with respect to the Global Note held on their behalf by the
Depositary or the Trustee as its custodian, and the Depositary may be treated by
the Company, any Guarantor, the Trustee and any agent of the Company, any
Guarantor or the Trustee as the absolute owner of such Global Note for all
purposes. Notwithstanding the foregoing, nothing herein shall (i) prevent the
Company, any Guarantor, the Trustee or any agent of the Company, any Guarantor
or the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or (ii) impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder.
(b) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in such Global Note through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
29
(c) Whenever, as a result of an optional redemption of Notes by the
Company, a Change of Control Offer, an Asset Sale Offer, a Registered Exchange
Offer or an exchange for Certificated Notes pursuant to the provisions of
Section 2.06(b) or Section 2.06(c) hereof; a Global Note is redeemed,
repurchased or exchanged in part, such Global Note shall be surrendered by the
Holder thereof to the Trustee who shall cause an adjustment to be made to
Schedule A thereof so that the principal amount of such Global Note will be
equal to the portion of such Global Note not redeemed, repurchased or exchanged
and shall thereafter return such Global Note to such Holder, provided that each
--------
such Global Note shall be in a principal amount of $1,000 or an integral
multiple thereof.
SECTION 2.06. Transfer and Exchange. (a) By its acceptance of
---------------------
any Initial Note represented by a certificate bearing the Private Placement
Legend, each Holder of, and beneficial owner of an interest in, such Initial
Note acknowledges the restrictions on transfer of such Initial Note set forth in
the Private Placement Legend and agrees that it will transfer such Initial Note
only in accordance with the Private Placement Legend. Upon the registration of
transfer, exchange or replacement of an Initial Note not bearing the Private
Placement Legend, the Trustee shall deliver an Initial Note or Initial Notes
that does not or do not bear the Private Placement Legend. Upon the transfer,
exchange or replacement of an Initial Note bearing the Private Placement Legend,
the Trustee shall deliver an Initial Note or Initial Notes bearing the Private
Placement Legend, unless such legend may be removed from such Note as provided
in this Section 2.06(a). If the Private Placement Legend has been removed from
an Initial Note, as provided herein, no other Initial Note issued in exchange
for all or any part of such Initial Note shall bear such legend, unless the
Company has reasonable cause to believe that such other Initial Note represents
a "restricted security" within the meaning of Rule 144 and instructs the Trustee
in writing to cause a legend to appear thereon. Each Initial Note shall bear
the Private Placement Legend unless and until:
(i) a transfer of such Initial Note is made pursuant to an
effective Shelf Registration Statement, in which case the Private Placement
Legend shall be removed from such Initial Note so transferred at the
request of the Holder; or
(ii) there is delivered to the Company such satisfactory
evidence, which may include an opinion of independent counsel licensed to
practice law in the State of New York, as may reasonably be requested by
the Company confirming that neither such legend nor the restrictions on
transfer set forth therein are required to ensure that transfers of such
Initial Note will not violate the registration and prospectus delivery
requirements of the Securities Act; provided that the Trustee shall not be
--------
required to determine (but may rely on a determination made by the Company
with respect to) the sufficiency of any such evidence; and upon provision
of such evidence, the Trustee shall authenticate and deliver in exchange
for such Initial Note, an Initial Note or Initial Notes (representing the
same aggregate principal amount of the Initial Note being exchanged)
without such legend.
(b) Special Transfer Provisions. The following provisions of this
---------------------------
paragraph (b) are applicable only to Initial Notes bearing the Private Placement
Legend:
30
(i) Transfers to QIBs. If the Holder of an Initial Certificated
-----------------
Note wishes to transfer such Initial Certificated Note to a QIB pursuant to
Rule 144A, such Holder may, subject to the rules and procedures of the
Depositary, cause the exchange of such Initial Certificated Note for an
equivalent beneficial interest in the Initial Global Note. Upon receipt by
the Trustee, as Registrar, at its Corporate Trust Office of (A) such
Initial Certificated Note, duly endorsed as provided herein, (B)
instructions from such Holder directing the Trustee, as Registrar, to
credit or cause to be credited a beneficial interest in the Initial Global
Note equal to the principal amount of the Initial Certificated Note to be
exchanged, such instructions to contain information regarding the
participant account with the Depositary to be credited with such increase
and (C) a certificate in the form of Exhibit E attached hereto from the
transferor, then the Trustee, as Registrar, shall cancel or cause to be
canceled such Initial Certificated Note and shall instruct the Depositary
to increase or cause to be increased such Initial Global Note by the
aggregate principal amount of the beneficial interest in the Initial
Certificated Note to be exchanged and to credit or cause to be credited to
the account of the Person specified in such instructions a beneficial
interest in the Initial Global Note equal to the principal amount of the
Initial Certificated Note so canceled;
(ii) Transfers to Institutional Accredited Investors and Exchange
------------------------------------------------------------
of Interests in Global Notes.
----------------------------
(A) If a Holder of a beneficial interest in the Initial Global
Note deposited with the Depositary or the Trustee as custodian for the
Depositary wishes at any time to transfer its interest in such Initial
Global Note to an Institutional Accredited Investor or to exchange
such interest for an Initial Certificated Note evidencing such
interest, such Holder may, subject to the rules and procedures of the
Depositary, cause the transfer or exchange of such interest for one or
more Initial Certificated Notes of any authorized denomination or
denominations and of the same aggregate principal amount. Upon
receipt by the Trustee, as Registrar, at its Corporate Trust Office of
(I) instructions from the Depositary directing the Trustee, as
Registrar, to authenticate and deliver one or more Initial
Certificated Notes of the same aggregate principal amount as the
beneficial interest in the Initial Global Note to be transferred or
exchanged, such instructions to contain the name or names of the
designated transferee or transferees, if any, the authorized
denomination or denominations of the Initial Certificated Notes to be
so issued and appropriate delivery instructions and (II) in the case
of a transfer, (x) a certificate in the form of Exhibit F attached
hereto from the transferor, (y) a certificate in the form of Exhibit G
attached hereto from the transferee and (z) such other certifications,
legal opinions or other information as the Company or the Trustee may
reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee, as
Registrar, will instruct the Depositary to reduce or cause to be
reduced such Initial Global Note by the aggregate principal amount of
the beneficial interest therein to be exchanged or transferred and to
debit or cause to be debited from the account of the Person making
such exchange or transfer the beneficial interest in the Initial
Global Note
31
that is being exchanged or transferred, and concurrently with such
reduction and debit the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Initial Certificated Notes of
the same aggregate principal amount in accordance with the
instructions referred to above; and
(B) if a Holder of an Initial Certificated Note wishes to
transfer such Note to an Institutional Accredited Investor, such
Holder may, subject to the restrictions on transfer set forth herein
and in such Initial Certificated Note, cause the exchange of such
Initial Certificated Note for one or more Initial Certificated Notes
of any authorized denomination or denominations and of the same
aggregate principal amount. Upon receipt by the Trustee, as
Registrar, at its Corporate Trust Office of (I) such Initial
Certificated Note, duly endorsed as provided herein, (II) instructions
from such Holder directing the Trustee, as Registrar, to authenticate
and deliver one or more Initial Certificated Notes of the same
aggregate principal amount as the Initial Certificated Notes to be
exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Initial Certificated Notes to be so issued and
appropriate delivery instructions, (III) a certificate in the form of
Exhibit F attached hereto from the transferor, (IV) a certificate in
the form of Exhibit G attached hereto from the transferee and (V) such
other certifications, legal opinions or other information as the
Company or the Trustee may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act, then the Trustee, as Registrar, shall cancel or cause
to be canceled such Initial Certificated Note and concurrently
therewith, the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Initial Certificated Notes of
the same aggregate principal amount, in accordance with the
instructions referred to above;
(iii) Transfers to Non-U.S. Persons. (A) If a Holder of a
-----------------------------
beneficial interest in the Initial Global Note deposited with the
Depositary or the Trustee as custodian for the Depositary wishes at
any time to transfer its interest in such Initial Global Note to a
Non-U.S. Person pursuant to Regulation S who wishes to take delivery
thereof in the form of a Certificated Note, such Holder may, subject
to the rules and procedures of the Depositary, cause the exchange of
such interest for one or more Initial Certificated Notes of any
authorized denomination or denominations and of the same aggregate
principal amount. Upon receipt by the Trustee, as Registrar, at its
Corporate Trust Office of (I) instructions from the Depositary
directing the Trustee, as Registrar, to authenticate and deliver one
or more Initial Certificated Notes of the same aggregate principal
amount as the beneficial interest in the Initial Global Note to be
exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Initial Certificated Notes to be so issued and
appropriate delivery instructions, (II) a certificate in the form of
Exhibit H attached hereto from the transferor, (III) a certificate in
the form of Exhibit I attached hereto from the transferee and (IV)
such other certifications,
32
legal opinions or other information as the Company or the Trustee may
reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee, as
Registrar, will instruct the Depositary to reduce or cause to be
reduced such Initial Global Note by the aggregate principal amount of
the beneficial interest therein to be exchanged and to debit or cause
to be debited from the account of the Person making such transfer the
beneficial interest in the Initial Global Note that is being
transferred, and concurrently with such reduction and debit the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more Initial Certificated Notes of the same aggregate principal
amount in accordance with the instructions referred to above; and
(B) if a Holder of an Initial Certificated Note wishes to
transfer such Note to a Non-U.S. Person pursuant to Regulation S who
wishes to take delivery thereof in the form of a Certificated Note,
such Holder may, subject to the restrictions on transfer set forth
herein and in such Initial Certificated Note, cause the exchange of
such Initial Certificated Note for one or more Initial Certificated
Notes of any authorized denomination or denominations and of the same
aggregate principal amount. Upon receipt by the Trustee, as
Registrar, at its Corporate Trust Office of (I) such Initial
Certificated Note, duly endorsed as provided herein, (II) instructions
from such Holder directing the Trustee, as Registrar, to authenticate
and deliver one or more Initial Certificated Notes of the same
aggregate principal amount as the Initial Certificated Notes to be
exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Initial Certificated Notes to be so issued and
appropriate delivery instructions, (III) a certificate in the form of
Exhibit H attached hereto from the transferor, (IV) a certificate in
the form of Exhibit I attached hereto from the transferee and (V) such
other certifications, legal opinions or other information as the
Company or the Trustee may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act, then the Trustee, as Registrar, shall cancel or cause
to be canceled such Initial Certificated Note and concurrently
therewith, the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Initial Certificated Notes of
the same aggregate principal amount, in accordance with the
instructions referred to above;
(iv) Transfers Pursuant to Other Exemptions. (A) If a Holder of
--------------------------------------
a beneficial interest in the Initial Global Note deposited with the
Depositary or the Trustee as custodian for the Depositary wishes at
any time to transfer its interest in such Initial Global Note pursuant
to another applicable exemption from the registration requirements of
the Securities Act, such Holder may, subject to the rules and
procedures of the Depositary, cause the exchange of such interest for
one or more Initial Certificated Notes of any authorized denomination
or denominations and of the same aggregate principal amount. Upon
receipt by the Trustee, as Registrar, at its Corporate Trust Office of
(I) instructions from the
33
Depositary directing the Trustee, as Registrar, to authenticate and
deliver one or more Initial Certificated Notes of the same aggregate
principal amount as the beneficial interest in the Initial Global Note
to be exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Initial Certificated Notes to be so issued and
appropriate delivery instructions and (II) such certifications, legal
opinions or other information as the Company or the Trustee may
reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee, as
Registrar, will instruct the Depositary to reduce or cause to be
reduced such Initial Global Note by the aggregate principal amount of
the beneficial interest therein to be exchanged and to debit or cause
to be debited from the account of the Person making such transfer the
beneficial interest in the Initial Global Note that is being
transferred, and concurrently with such reduction and debit the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more Initial Certificated Notes of the same aggregate principal
amount in accordance with the instructions referred to above; and
(B) if a Holder of an Initial Certificated Note wishes to
transfer such Initial Certificated Note pursuant to another applicable
exemption from the registration requirements of the Securities Act,
such Holder may, subject to the restrictions on transfer set forth
herein and in such Initial Certificated Note, cause the exchange of
such Initial Certificated Note for one or more Initial Certificated
Notes of any authorized denomination or denominations and of the same
aggregate principal amount. Upon receipt by the Trustee, as
Registrar, at its Corporate Trust Office of (I) such Initial
Certificated Note, duly endorsed as provided herein, (II) instructions
from such Holder directing the Trustee, as Registrar, to authenticate
and deliver one or more Initial Certificated Notes of the same
aggregate principal amount as the Initial Certificated Notes to be
exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Initial Certificated Notes to be so issued and
appropriate delivery instructions and (III) such certifications, legal
opinions or other information as the Company or the Trustee may
reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee, as
Registrar, shall cancel or cause to be canceled such Initial
Certificated Note and concurrently therewith, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Initial Certificated Notes of the same aggregate principal amount, in
accordance with the instructions referred to above.
The Company shall deliver to the Trustee, and the Trustee shall retain for two
years, copies of all documents received pursuant to this Section 2.06(b). The
Company shall have the right to inspect and make copies of all such documents at
any reasonable time upon the giving of reasonable written notice to the Trustee.
34
(c) The Initial Global Note or Exchange Global Note, as the case may
be, shall be exchanged by the Company for one or more Initial Certificated Notes
or Exchange Certificated Notes, as the case may be, if (i) the Depositary has
notified the Company that it is unwilling or unable to continue as, or ceases to
be, a clearing agency registered under Section 17A of the Exchange Act and a
successor to the Depositary registered as a clearing agency under Section 17A of
the Exchange Act is not able to be appointed by the Company within 90 calendar
days, or (ii) the Depositary is at any time unwilling or unable to continue as
Depositary and a successor to the Depositary is not able to be appointed by the
Company within 90 calendar days, or (iii) the Company, at its option, notifies
the Trustee in writing that it elects to cause the issuance of Notes in the form
of Certificated Notes. If an Event of Default occurs and is continuing, the
Company shall, at the request of the Holder thereof, exchange all or part of the
Initial Global Note or Exchange Global Note, as the case may be, for one or more
Initial Certificated Notes or Exchange Certificated Notes, as the case may be;
provided that the principal amount of each of such Initial Certificated Notes or
--------
Exchange Certificated Notes, as the case may be, and such Global Note, after
such exchange, shall be $1,000 or an integral multiple thereof. Whenever a
Global Note is exchanged as a whole for one or more Initial Certificated Notes
or Exchange Certificated Notes, as the case may be, it shall be surrendered by
the Holder thereof to the Trustee for cancellation. Whenever a Global Note is
exchanged in part for one or more Initial Certificated Notes or Exchange
Certificated Notes, as the case may be, it shall be surrendered by the Holder
thereof to the Trustee and the Trustee shall make the appropriate notations
thereon pursuant to Section 2.05(c) hereof. All Initial Certificated Notes or
Exchange Certificated Notes, as the case may be, issued in exchange for a Global
Note or any portion thereof shall be registered in such names, and delivered, as
the Depositary shall instruct the Trustee. Any Initial Certificated Notes
issued pursuant to this Section 2.06(c) shall include the Private Placement
Legend, except as set forth in Section 2.06(a) hereof.
(d) Any Initial Notes that are presented to the Registrar for exchange
pursuant to a Registered Exchange Offer shall be exchanged for Exchange Notes of
equal principal amount upon surrender to the Registrar of the Initial Notes to
be exchanged in accordance with the terms of the Registered Exchange Offer;
provided that the Initial Notes so surrendered for exchange are accompanied by a
--------
letter of transmittal and duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
and duly executed by the Holder thereof or such Holder's attorney who shall be
duly authorized in writing to execute such document on behalf of such Holder.
Whenever any Initial Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver to the surrendering
Holder thereof, Exchange Notes in the same aggregate principal amount as the
Initial Notes so surrendered.
(e) A Holder may transfer a Note only upon the surrender of such Note
for registration of transfer. No such transfer shall be effected until, and the
transferee shall succeed to the rights of a Holder only upon, final acceptance
and registration of the transfer in the Note Register by the Registrar. When
Notes are presented to the Registrar with a request to register the transfer of,
or to exchange, such Notes, the Registrar shall register the transfer or make
such exchange as requested if the requirements for such transactions and any
applicable requirements hereunder are satisfied. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Certificated Notes at the Registrar's request.
35
(f) The Company shall not be required to make and the Registrar need
not register the transfer or exchange of Certificated Notes or portion thereof
selected for redemption (except, in the case of a Certificated Note to be
redeemed in part, the portion of such Note not to be redeemed) for a period of
15 calendar days before a selection of Notes to be redeemed.
(g) No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes (other than in respect of
a Registered Exchange Offer, except as provided in the Registration Rights
Agreement).
(h) All Notes issued upon any registration of transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Notes surrendered for
such registration of transfer or exchange.
(i) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry system maintained by such Holder (or its
agent), and that ownership of a beneficial interest in the Notes represented
thereby shall be required to be reflected in book-entry form. Transfers of a
Global Note shall be limited to transfers in whole and not in part, to the
Depositary, its successors, and their respective nominees. Interests of
beneficial owners in a Global Note shall be transferred in accordance with the
rules and procedures of the Depositary (or its successors), which shall, in the
case of the Initial Global Note, include restrictions designed to ensure that
the beneficial owners of such Initial Global Note are QIBs.
SECTION 2.07. Replacement Notes. If any mutilated Note is
-----------------
surrendered to the Trustee, the Company shall execute and upon its written
request the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Note, a new Note containing identical provisions
and of like principal amount, bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by either of them to save
either of them and any agent of each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Note has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Note, a new Note containing identical provisions and of like
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.07, the Company
may require the payment by the Holder of a sum sufficient to cover any tax or
other governmental
36
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.07 in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.08. 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 cancellation, those paid pursuant to Section 2.07
hereof and those described in this Section 2.08 as not outstanding. A Note does
not cease to be outstanding because the Company or an Affiliate of the Company
holds such Note.
If a Note is replaced pursuant to Section 2.07 hereof; it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that such replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or Maturity date money sufficient to pay
all principal, premium, if any, and 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, then on and after that date such Notes
(or such portions thereof) shall cease to be outstanding and interest on them
shall cease to accrue.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent or any amendment,
modification or other change to this Indenture, Notes held or beneficially owned
by the Company, any Subsidiary of the Company or any of their respective
Affiliates or by agents of any of the foregoing shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes which a Trust Officer actually
knows are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee such pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, any Subsidiary of the Company or
any of their respective Affiliates or any of their agents.
SECTION 2.09. Temporary Notes. Pending the preparation of
---------------
definitive Notes, the Company may execute, and the Trustee shall authenticate,
temporary notes ("Temporary Notes") which are printed, lithographed, or
otherwise produced, substantially of the tenor of the definitive Notes in lieu
of which they are issued and with such appropriate insertions, omissions,
37
substitutions and other variations as the officer executing the Notes may
reasonably determine, as conclusively evidenced by such officer's execution of
such Notes.
If Temporary Notes are issued, the Company shall cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the Temporary Notes shall be exchangeable for definitive Notes
upon surrender of the Temporary Notes to the Trustee, without charge to the
Holder. Until so exchanged, Temporary Notes will evidence the same debt and
will be entitled to the same benefits under this Indenture as the definitive
Notes in lieu of which they have been issued.
SECTION 2.10. Cancellation. The Company at any time may deliver
------------
Notes to the Trustee for prompt cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange, purchase or payment. The Trustee shall
cancel all Notes surrendered for registration of transfer, exchange, purchase,
payment or cancellation and shall return such canceled Notes to the Company.
The Company may not issue new Notes to replace Notes it has redeemed or paid or
that have been delivered to the Trustee for cancellation.
SECTION 2.11. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Note which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the Record Date for such interest
payment, which shall be the March 15 or September 15 (whether or not a Business
Day) immediately preceding such Interest Payment Date.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Record Date, and, except as hereinafter provided, such Defaulted
Interest, and any interest payable on such Defaulted Interest, may be paid by
the Company, at its election, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest,
and any interest payable on such Defaulted Interest, to the Persons in whose
names the Notes are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on the Notes and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as provided in this Section 2.11(a). Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 calendar days and not less than 10
calendar days prior to the date of the proposed payment and not less than 10
calendar days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be sent, first-class mail,
38
postage prepaid, to each Holder at such Holder's address as it appears in the
Note Register, not less than 10 calendar days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Notes are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b); or
(b) The Company may make payment of any Defaulted Interest, and any
interest payable on such Defaulted Interest, on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.11, each Note
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Note, shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.12. Computation of Interest. Interest on the Notes
-----------------------
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.13. Persons Deemed Owners. Prior to the due
---------------------
presentation for registration of transfer of any Note, the Company, the Trustee,
the Paying Agent, the Registrar or any co-registrar may deem and treat the
person in whose name such Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of, premium, if any, and
interest and Additional Interest, if any, 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, the Registrar or any co-Registrar shall
be affected by notice to the contrary.
SECTION 2.14. CUSIP Numbers. The Company, in issuing the Notes,
-------------
may use a "CUSIP" number for each series of Notes and, if so, the Trustee shall
use the relevant CUSIP number in any notices to Holders as a convenience to such
Holders; provided that any such notice may state that no representation is made
--------
as to the correctness or accuracy of the CUSIP number printed in the notice or
on the Notes and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company shall promptly notify the Trustee of
any change in any CUSIP number used.
ARTICLE III
REDEMPTION
SECTION 3.01. Notice to Trustee. If the Company elects to redeem
-----------------
Notes pursuant to the optional redemption provisions thereof 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 such notice to the Trustee at least 45
calendar days prior to the Redemption Date unless the
39
Trustee consents to a shorter period. Such notice shall be accompanied by an
Officers' Certificate and an Opinion of Counsel from the Company to the effect
that such redemption will comply with any conditions to such redemption set
forth herein and in the Notes.
SECTION 3.02. Selection of Notes to be Redeemed. If less than
---------------------------------
all the Notes are to be redeemed at any time, the Trustee shall select the Notes
to be redeemed on a pro rata basis; provided that no Notes of $1,000 or less
--- ---- --------
shall be redeemed in part. In selecting Notes to be redeemed pursuant to this
Section 3.02, the Trustee shall make such adjustments, reallocations and
eliminations as it shall deem proper so that the principal amount of each Note
to be redeemed shall be $1,000 or an integral multiple thereof, by increasing,
decreasing or eliminating any amount less than $1,000 which would be allocable
to any Holder. 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. At least 30 calendar days
--------------------
but not more than 60 calendar days before a Redemption Date, the Company shall
send or cause to be sent a notice of redemption, by first class mail, postage
prepaid, to Holders of Notes to be redeemed at the addresses of such Holders as
they appear in the Note Register.
The notice shall identify the Notes to be redeemed (including CUSIP
number) and shall state:
(a) the Redemption Date;
(b) the Redemption Price (and shall specify the portion of such
Redemption Price that constitutes the amount of accrued and unpaid interest and
Additional Interest to be paid, if any);
(c) the name and address of the Paying Agent;
(d) that the Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(e) if any Global Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, the Global Note, with a notation on Schedule A thereof adjusting the
principal amount thereof to be equal to the unredeemed portion, will be returned
to the Holder thereof;
(f) if any Certificated Note is being redeemed in part, the portion
of the principal amount of such Note to be redeemed and that, after the
Redemption Date, a new Certificated Note or Certificated Notes in principal
amount equal to the unredeemed portion will be issued;
(g) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be redeemed;
40
(h) that, unless the Company defaults in making the redemption
payment, interest on the Notes (or portions thereof) called for redemption shall
cease and such Notes (or portions thereof) shall cease to accrue interest on and
after the Redemption Date;
(i) the paragraph of the Notes pursuant to which the Notes are being
called for redemption; and
(j) any other information necessary to enable Holders to comply with
the notice of redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section 3.03 in a timely manner and in no event less than 37 calendar days prior
to the Redemption Date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Notes called for redemption shall become due and payable
on the Redemption Date and at the Redemption Price stated in such notice. Upon
surrender to the Paying Agent, such Notes shall be paid at the Redemption Price
stated in such notice. Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. On or prior to 10:00
---------------------------
a.m., New York City time, on each Redemption Date, the Company shall deposit
with the Paying Agent (or, if the Company, one of its Subsidiaries or any of
their Affiliates is the Paying Agent, the Paying Agent shall segregate and hold
in trust for the benefit of the Holders) money, in federal or other immediately
available funds, sufficient to pay the Redemption Price on all Notes or portions
thereof to be redeemed on that date other than Notes or portions of Notes called
for redemption on such date which have been delivered by the Company to the
Trustee for cancellation.
So long as the Company complies with the preceding paragraph and the
other provisions of this Article III, interest on the Notes or portions thereof
to be redeemed on the applicable Redemption Date shall cease to accrue from and
after such date and such Notes or portions thereof shall be deemed not to be
entitled to any benefit under this Indenture except to receive payment of the
Redemption Price on the Redemption Date (subject to the right of each Holder of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date). If any Note called for redemption shall not be so paid
upon surrender for redemption, then, from the Redemption Date until such
Redemption Price is paid, interest shall be paid on the unpaid principal and
premium and, to the extent permitted by law, on any accrued but unpaid interest
thereon, in each case at the rate prescribed therefor by such Notes.
SECTION 3.06. Notes Redeemed in Part. (a) Upon surrender and
----------------------
cancellation of a Certificated Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate and make available for delivery to the
surrendering Holder (at the Company's expense) a new Certificated Note equal in
principal amount to the unredeemed portion of the Certificated Note surrendered
and canceled, provided that each such Certificated Note shall be in a principal
-------- ----
amount of $1,000 or an integral multiple thereof.
41
(b) Upon surrender of a Global Note that is redeemed in part, the
Paying Agent shall forward such Global Note to the Trustee who shall make a
notation on Schedule A thereof to reduce the principal amount of such Global
Note to an amount equal to the unredeemed portion of such Global Note, as
provided in Section 2.05(c) hereof.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes. The Company shall promptly pay
----------------
the principal of, premium, if any, 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, premium, interest and overdue Additional Interest shall
be considered paid on the date due if, on such date, the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal, premium, interest and Additional Interest then due.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium, Defaulted Interest and Additional Interest (without
regard to any applicable grace period) at the interest rate borne on the Notes.
The Company's obligation pursuant to the previous sentence shall apply whether
such overdue amount is due at its Stated Maturity, as a result of the Company's
obligations pursuant to Sections 3.05, Section 4.07 or Section 4.08 hereof, or
otherwise.
All payments with respect to a Global Note or a Certificated Note
(including principal, premium, if any, interest and Additional Interest, if any)
the Holders of whom have given wire transfer instructions to the Company will be
required to be made by wire transfer of immediately available funds to the
account or (in the case of a Global Note) accounts specified by the Holders
thereof or, if no such account is specified, by sending via first-class mail,
postage prepaid, a check to each such Holder's registered address.
SECTION 4.02. Maintenance of Office or Agency. The Company shall
-------------------------------
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served, which office shall be initially the Corporate Trust Office. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Notes may
be presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; provided that no such designation or
--------
rescission shall in any manner relieve the Company of its
42
obligation to maintain an office or agency in The City of New York for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation and any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.03. Money for the Note Payments to be Held in Trust.
-----------------------------------------------
If the Company, any Subsidiary of the Company or any of their respective
Affiliates shall at any time act as Paying Agent with respect to the Notes, such
Paying Agent shall, on or before each due date of the principal of, premium, if
any, or interest or Additional Interest, if any, on any of the Notes, segregate
and hold in trust for the benefit of the Persons entitled thereto money
sufficient to pay the principal, premium, if any, or interest or Additional
Interest, if any, so becoming due until such money shall be paid to such Persons
or otherwise disposed of as herein provided, and shall promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to the Notes, it shall, prior to 10:00 a.m. New York City time on each due date
of the principal of, premium, if any, or interest or Additional Interest, if
any, on any of the Notes, deposit with a Paying Agent a sum sufficient to pay
the principal, premium, if any, or interest or Additional Interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Interest, if any,
and (unless such Paying Agent is the Trustee) the Paying Agent shall promptly
notify the Trustee of the Company's action or failure so to act.
SECTION 4.04. Corporate Existence. Subject to the provisions of
-------------------
Article V hereof, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect the corporate existence, rights
(charter and statutory) and franchises of the Company and each of its
Subsidiaries; provided that the Company and any such Subsidiary shall not be
--------
required to preserve the corporate existence of any such Subsidiary or any such
right or franchise if the Board shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.05. Maintenance of Property. The Company shall cause
-----------------------
all Property used or useful in the conduct of its business or the business of
any of its Subsidiaries to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as, in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided that nothing in this Section 4.05 shall prevent
--------
the Company from discontinuing the operation or maintenance of any of such
Property if such discontinuance is, in the judgment of the Company, desirable in
the conduct of its business or the business of any of its Subsidiaries and not
disadvantageous in any material respect to the Holders.
43
SECTION 4.06. Payment of Taxes and Other Claims. The Company
---------------------------------
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or Property of the Company or any of its Subsidiaries and (b) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a Lien
upon the Property of the Company or any of its Subsidiaries; provided that the
--------
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP or other appropriate provision
has been made.
SECTION 4.07. Repurchase at the Option of Holders upon a 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 (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described in Section 4.07(b) hereof (the "Change of Control Offer") at an
offer price (the "Change of Control Purchase Price") in cash equal to 101% of
the principal amount of such Notes (or portions thereof) to be redeemed plus
accrued and unpaid interest and Additional Interest, if any, thereon to the date
of purchase (the "Change of Control Payment Date") (subject to the right of each
Holder of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).
(b) Within 30 calendar days after the date of any Change of Control,
the Company, or the Trustee at the request and expense of the Company, shall
send to each Holder by first class mail, postage prepaid, a notice prepared by
the Company describing the transaction or transactions that constitute the
Change of Control and stating:
(i) that a Change of Control has occurred and a Change of Control
Offer is being made pursuant to this Section 4.07, and that all Notes that
are timely tendered will be accepted for payment;
(ii) the Change of Control Purchase Price, and the Change of Control
Payment Date, which date shall be a Business Day no earlier than 30
calendar days nor later than 60 calendar days subsequent to the date such
notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for
payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Change
of Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest from and after the Change of Control Payment Date;
(v) that any Holder electing to have any Notes or portions thereof
purchased pursuant to a Change of Control Offer will be required to tender
such Notes, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of such Notes
44
completed, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the Change of
Control Payment Date;
(vi) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter, setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing such Holder's election to have such Notes or portions
thereof purchased pursuant to the Change of Control Offer;
(vii) that any Holder electing to have Notes purchased pursuant to
the Change of Control Offer must specify the principal amount that is being
tendered for purchase, which principal amount must be $1,000 or an integral
multiple thereof;
(viii) if Certificated Notes have been issued, that any Holder of
Certificated Notes whose Certificated Notes are being purchased only in
part will be issued new Certificated Notes equal in principal amount to the
unpurchased portion of the Certificated Note or Notes surrendered, which
unpurchased portion will be equal in principal amount to $1,000 or an
integral multiple thereof;
(ix) that the Trustee will return to the Holder of a Global Note
that is being purchased in part, such Global Note with a notation on
Schedule A thereof adjusting the principal amount thereof to be equal to
the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to tender
Notes and to have such Notes purchased pursuant to this Section 4.07.
If the Company requests that the Trustee provide such notice, the
Company shall provide the Trustee with the information required by this Section
4.07(b) in a timely manner and in no event more than 23 calendar days after the
date of such Change of Control.
(c) On the Change of Control Payment Date, the Company shall, (i)
accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (ii) irrevocably deposit with the Paying Agent, by
10:00 a.m., New York City time, on such date, in immediately available funds, an
amount equal to the Change of Control Purchase Price in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so tendered together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. Subject to the provisions of Section 4.01 hereof, the Paying Agent
shall promptly send by first class mail, postage prepaid, to each Holder of
Notes so accepted for payment the Change of Control Purchase Price for such
Notes or portions thereof. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date. For purposes of this Section 4.07, the Trustee shall act
as the Paying Agent.
(d) Upon surrender and cancellation of a Certificated Note that is
purchased in part pursuant to the Change of Control Offer, the Company shall
promptly issue and the Trustee
45
shall authenticate and deliver to the surrendering Holder of such Certificated
Note a new Certificated Note equal in principal amount to the unpurchased
portion of such surrendered Certificated Note; provided that each such new
--------
Certificated Note shall be in a principal amount of $1,000 or an integral
multiple thereof.
Upon surrender of a Global Note that is purchased in part pursuant to
a Change of Control Offer, the Paying Agent shall forward such Global Note to
the Trustee who shall make a notation on Schedule A thereof to reduce the
principal amount of such Global Note to an amount equal to the unpurchased
portion of such Global Note, as provided in Section 2.05(c) hereof.
(e) The Company shall comply with the requirements of Section 14(e)
of, and Rule 14e-1 under, the Exchange Act and any other securities laws or
regulations to the extent such laws and regulations are applicable in connection
with the purchase of Notes pursuant to a Change of Control Offer.
SECTION 4.08. Limitation on Asset Sales. (a) The Company shall
-------------------------
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
engage in an Asset Sale (except an Exempt Asset Sale) unless:
(i) the Company (or such Subsidiary) receives consideration at the
time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of, and in the case of a lease of assets,
a lease providing for rent and other conditions which are no less favorable
to the Company (or such Subsidiary) in any material respect than the then
prevailing market conditions (as determined in each case by the Board,
whose determination shall be conclusive if made in good faith and evidenced
by a Board Resolution set forth in an Officers' Certificate delivered to
the Trustee); and
(ii) at least 85% (100% in the case of lease payments) of the
consideration therefor received by the Company or such Subsidiary is in the
form of cash or Cash Equivalents.
(b) The Company may apply, and may permit its Subsidiaries to apply,
Net Proceeds of an Asset Sale (other than an Exempt Asset Sale), at its option,
in each case within 180 days after the consummation of such an Asset Sale:
(i) to permanently reduce Senior Indebtedness (and to
permanently reduce the commitments, if any, with respect thereto);
(ii) to acquire Eligible Assets or to reimburse the Company or
its Subsidiaries for expenditures previously made to acquire Eligible
Assets, provided that any such expenditures were made not more than 180
--------
days prior to the consummation of such Asset Sale and were made in
contemplation of such Asset Sale and for the purpose of replacing the
assets to be disposed of in such Asset Sale; or
(iii) to reimburse the Company or its Subsidiaries for
expenditures made, and costs incurred, to repair, rebuild, replace or
restore property subject to loss,
46
damage or taking to the extent that the Net Proceeds consist of insurance
proceeds received on account of such loss, damage or taking.
Pending the final application of any such Net Proceeds, the Company may invest
such Net Proceeds temporarily in Cash Equivalents or apply such Net Proceeds to
reduce amounts outstanding under the Credit Agreement.
(c) Any Net Proceeds from Asset Sales (other than Exempt Asset Sales)
that are not applied as provided in paragraph (b) of this Section 4.08 within
180 days after the consummation of such an Asset Sale will be deemed to
constitute "Excess Proceeds."
(d) When the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company will be required to make an offer to all Holders (an "Asset
Sale Offer"), to purchase, on a pro rata basis, the principal amount of Notes
equal in amount to the Excess Proceeds (and not just the amount thereof that
exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest thereon to the date of purchase (subject
to the right of each Holder of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date), in accordance with the
procedures set forth in this Indenture, and in accordance with the following
standards:
(i) If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis, based on the principal amount of
--------
Notes tendered, with such adjustments as may be deemed appropriate by the
Trustee, so that only Notes in denominations of $1,000 or integral
multiples thereof shall be purchased.
(ii) If the aggregate principal amount of Notes tendered pursuant to
such Asset Sale Offer is less than the Excess Proceeds, the Company may use
any remaining Excess Proceeds following the completion of the Asset Sale
Offer for general corporate purposes (subject to the other provisions of
this Indenture).
Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then
required to be otherwise applied in accordance with this covenant shall be reset
to zero, subject to any subsequent Asset Sale.
(e) Within 30 calendar days after the date the amount of Excess
Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and
expense of the Company, shall send to each Holder by first-class mail, postage
prepaid, a notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made pursuant to this
Section 4.08 and that all Notes that are timely tendered will be accepted
for payment, subject to proration if the amount of Excess Proceeds is less
than the aggregate principal amount of all Notes timely tendered pursuant
to the Asset Sale Offer;
47
(ii) the Asset Sale Offer Amount, the amount of Excess
Proceeds that are available to be applied to purchase tendered Notes, and
the date Notes are to be purchased pursuant to the Asset Sale Offer (the
"Asset Sale Purchase Date"), which date shall be a Business Day no earlier
than 30 calendar days nor later than 60 calendar days subsequent to the
date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the
Asset Sale Offer Amount with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest from and after the Asset Sale Purchase Date;
(v) that any Holder electing to have any Notes or portions
thereof purchased pursuant to the Asset Sale Offer will be required to
surrender such Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of such Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the
third Business Day preceding the Asset Sale Purchase Date;
(vi) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of business
on the second Business Day preceding the Asset Sale Purchase Date, a
facsimile transmission or letter, setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing such Holder's election to have such Notes or portions
thereof purchased pursuant to the Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant
to the Asset Sale Offer must specify the principal amount that is being
tendered for purchase, which principal amount must be $1,000 or an integral
multiple thereof;
(viii) if Certificated Notes have been issued hereunder, that
any Holder of Certificated Notes whose Certificated Notes are being
purchased only in part will be issued new Certificated Notes equal in
principal amount to the unpurchased portion of the Certificated Note or
Notes surrendered, which unpurchased portion will be equal in principal
amount to $1,000 or an integral multiple thereof;
(ix) that the Trustee will return to the Holder of a Global
Note that is being purchased in part, such Global Note with a notation on
Schedule A thereof adjusting the principal amount thereof to be equal to
the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to this Section
4.08.
If the Company requests that the Trustee provide such notice, the
Company shall provide the Trustee with the information required by this Section
4.08(e) in a timely manner and
48
in no event more than 23 calendar days after the date the amount of Excess
Proceeds exceeds $5.0 million.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for
payment any Notes or portions thereof properly tendered and selected for
purchase pursuant to the Asset Sale Offer and Section 4.08(e) hereof; (ii)
irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on
such date, in immediately available funds, an amount equal to the Asset Sale
Offer Amount in respect of all Notes or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee the Notes so accepted together
with an Officers' Certificate listing the Notes or portions thereof tendered to
the Company and accepted for payment. Subject to the provisions of Section
4.01, the Paying Agent shall promptly send by first class mail, postage prepaid,
to each Holder of Notes so accepted for payment the Asset Sale Offer Amount for
such Notes or portions thereof. The Company shall publicly announce the results
of the Asset Sale Offer on or as soon as practicable after the Asset Sale
Purchase Date. For purposes of this Section 4.08, the Trustee shall act as the
Paying Agent.
(g) Upon surrender and cancellation of a Certificated Note that is
purchased in part, the Company shall promptly issue and the Trustee shall
authenticate and deliver to the surrendering Holder of such Certificated Note, a
new Certificated Note equal in principal amount to the unpurchased portion of
such surrendered Certificated Note; provided that each such new Certificated
--------
Note shall be in a principal amount of $1,000 or an integral multiple thereof.
(h) Upon surrender of a Global Note that is purchased in part, the
Paying Agent shall forward such Global Note to the Trustee who shall make a
notation on Schedule A thereof to reduce the principal amount of such Global
Note, as provided in Section 2.05(c) hereof.
(i) Upon completion of an Asset Sale Offer (including payment of the
Asset Sale Purchase Price for accepted Notes), any surplus Excess Proceeds that
were the subject of such offer shall cease to be Excess Proceeds, and the
Company may then use such amounts for general corporate purposes (subject to
other provisions of this Indenture).
(j) If at any time any non-cash consideration received by the Company
or any Subsidiary of the Company in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash, then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Proceeds thereof shall be applied in accordance with this Section 4.08.
(k) The provisions of this Section 4.08 shall not apply to a
transaction consummated in compliance with the provisions of Section 5.01
hereof. In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Subsidiaries as an entirety to a
Person in a transaction permitted by Section 5.01 hereof, the successor
corporation shall be deemed to have sold the properties and assets of the
Company and its Subsidiaries not so transferred for purposes of this covenant,
and shall comply with the provisions of this covenant with respect to such
deemed sale as if it were an Asset Sale. In
49
addition, the fair market value of such properties and assets of the Company and
its Subsidiaries deemed to be sold shall be deemed to be Net Proceeds for
purposes of this Section 4.08.
(l) The Company may use Net Proceeds from Exempt Asset Sales for
general corporate purposes (subject to the other provisions of this Indenture).
(m) Notwithstanding the foregoing, the Company will not, and will not
permit any Subsidiary to, directly or indirectly, make any Asset Sale of any of
the Capital Stock of a Subsidiary except pursuant to an Asset Sale of all of the
Capital Stock of such Subsidiary.
(m) The Company shall comply with the requirements of Section 14(e)
of, and Rule I 4e- 1 under, the Exchange Act and any other securities laws or
regulations, to the extent such laws and regulations are applicable in
connection with the purchase of Notes pursuant to an Asset Sale Offer.
SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance
-----------------------------------------------------
of Preferred Stock. (a) The Company shall not, and shall not permit any of its
------------------
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Indebtedness) other than Permitted Indebtedness and the Company shall not issue
any Disqualified Stock and shall not permit any of its Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company may incur
-------- -------
Indebtedness (including Acquired Indebtedness) and the Company may issue shares
of Disqualified Stock if:
(i) the Fixed Charge Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have
been at least 2.0 to 1.0 with respect to any incurrence on or before
September 30, 2000, or 2.50 to 1.0 with respect to any incurrence
thereafter, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued,
as the case may be, at the beginning of such four-quarter period; and
(ii) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
SECTION 4.10. Limitation on Restricted Payments. (a) The Company shall
---------------------------------
not, and shall not permit any of its Subsidiaries to, directly or indirectly :
(i) declare or pay any dividend or make any distribution of any
kind or character (whether in cash, securities or other property) on
account of any class of the Company's or any of its Subsidiaries' Equity
Interests or to holders thereof (including, without limitation, any payment
to stockholders of the Company in connection with a merger or consolidation
involving the Company), other than (a) dividends or distributions payable
solely in Equity Interests (other than Disqualified Stock) of the Company
or (b)
50
dividends or distributions payable solely to the Company or any Wholly-
Owned Subsidiary of the Company;
(ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company, any Subsidiary of the Company, or any
other Affiliate of the Company (other than any such Equity Interests owned
by the Company or any Wholly-Owned Subsidiary of the Company);
(iii) make any principal payment on, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness of the
Company or any Guarantor that is pari passu with or subordinated to the
Notes or the Note Guarantees prior to any scheduled repayment date,
mandatory sinking fund payment date or final maturity date (other than the
Notes), other than through the purchase, redemption or acquisition by the
Company of Indebtedness of the Company or any of its Subsidiaries through
the issuance in exchange therefor of Equity Interests (other than
Disqualified Stock) of the Company;
(iv) make any Investment (other than Permitted Investments); or
(v) make any payments to any Affiliate of the Company as
compensation for management services, except through the issuance of Equity
Interests (other than Disqualified Stock) of the Company
(all such payments and other actions set forth in clauses (i) through (v)
above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(I) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(II) at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, the
Company would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth under Section 4.09(a) hereof; and
(III) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments declared or made by the
Company and its Subsidiaries on or after the date of this Indenture
(excluding Restricted Payments permitted by Sections 4.10(b)(ii),
4.10(b)(iii), 4.10(b)(iv), 4.10(b)(v) and 4.10(b)(vi) hereof), is less
than the sum of (i) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the date of the Indenture to
the end of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds received by the
51
Company from the issue or sale after the date of this Indenture of
Equity Interests of the Company or of debt securities of the Company
that have been converted into such Equity Interests (other than Equity
Interests (or convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock).
(b) The foregoing clauses (II) and (III) of Section 4.10(a) will not
prohibit:
(i) the payment of any dividend on any class of Capital Stock
of the Company or any Subsidiary of the Company within 60 days after the
date of declaration thereof, if on the date on which such dividend was
declared such payment would have complied with the provisions of this
Indenture; or
(ii) any dividend on shares of Capital Stock payable solely in
shares of Capital Stock (other than Disqualified Stock); or
(iii) any dividend or other distribution payable from a
Subsidiary to the Company or any Wholly-Owned Subsidiary; or
(iv) the making of any Investment in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of Equity Interests of the Company (other than
Disqualified Stock); provided, that any net cash proceeds that are utilized
for any such Investment, and any Net Income resulting therefrom, shall be
excluded from clause (III) of Section 4.10(a) hereof; or
(v) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Company in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company (other
than any Disqualified Stock); provided that any net cash proceeds that are
utilized for any such redemption, repurchase, retirement or other
acquisition, and any Net Income resulting therefrom, shall be excluded from
clause (III) of Section 4.10(a) hereof; or
(vi) the defeasance, redemption or repurchase of pari passu or
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or the substantially concurrent sale
(other than to a Subsidiary of the Company) of Equity Interests of the
Company (other than Disqualified Stock); provided, that any net cash
proceeds that are utilized for any such defeasance, redemption or
repurchase, and any Net Income resulting therefrom, shall be excluded from
clause (III) of Section 4.10(a) hereof; or
(vii) the repurchase of shares of Capital Stock of the Company
in connection with repurchase provisions under employee stock option and
stock purchase agreements or other agreements to compensate management
employees of the Company to the extent such payments do not exceed $1.0
million in the aggregate.
52
(d) The amount of all Restricted Payments (other than cash) shall be
the fair market value (as determined by the Board, whose determination shall be
conclusive if evidenced by a Board Resolution set forth in an Officer's
Certificate delivered to the Trustee) on the date of the Restricted Payment of
the asset(s) proposed to be transferred by the Company or such Subsidiary, as
the case may be, pursuant to the Restricted Payment. Not later than the date of
making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted, setting
forth the basis upon which the calculations required by this Section 4.10 were
computed and accompanied by such Board Resolution, which calculations may be
based upon the Company's latest available financial statements.
SECTION 4.11. Limitation on Liens. Unless the Notes and the Note
-------------------
Guarantees are equally and ratably secured, the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien on any of its assets, now owned or hereafter
acquired, securing any Indebtedness other than Permitted Liens; provided that,
if such Indebtedness is by its terms expressly subordinate to the Notes or the
Note Guarantees, the Lien securing such subordinate or junior Indebtedness shall
be subordinate and junior to the Lien securing the Notes or the Note Guarantees
with the same relative priority as such subordinated or junior Indebtedness
shall have with respect to the Notes or the Note Guarantees.
SECTION 4.12. Sale and Leaseback Transactions. The Company shall
-------------------------------
not, and shall not cause or permit any of its Subsidiaries to, enter into any
Sale and Leaseback Transaction. Notwithstanding the foregoing, the Company or
any Subsidiary may enter into a Sale and Leaseback Transaction if:
(a) after giving pro forma effect to any such Sale and Leaseback
Transaction, the Company shall be in compliance with Sections 4.09 and 4.11
hereof;
(b) the gross cash proceeds of such Sale and Leaseback Transaction are
at least equal to the fair market value of such property (as determined by the
Board, whose determination shall be conclusive if made in good faith and
evidenced by a Board Resolution);
(c) the aggregate rent payable by the Company in respect of such Sale
and Leaseback Transaction is not in excess of the fair market rental value of
the property leased pursuant to such Sale and Leaseback Transaction; and
(d) the Company shall apply the net cash proceeds of the sale as
provided in Section 4.08 hereof; to the extent required therein.
SECTION 4.13. Limitation on Ownership of and Liens on Capital
-----------------------------------------------
Stock. The Company (a) shall not permit any Person (other than the Company or
-----
any Wholly-Owned Subsidiary of the Company) to own any Capital Stock of any
Subsidiary of the Company, and (b) shall not permit any Subsidiary of the
Company to issue Capital Stock (except to the Company or to a Wholly-Owned
Subsidiary) or create, incur, assume or suffer to exist any Lien thereon, in
each case except:
53
(i) directors' qualifying shares;
(ii) Capital Stock issued prior to the time such Person became
a Subsidiary of the Company, provided that such Capital Stock was not
issued in anticipation of such transaction;
(iii) if such Subsidiary merges with another Subsidiary of the
Company;
(iv) if such Subsidiary ceases to be a Subsidiary of the
Company (as a result of the sale of 100% of the shares of such Subsidiary,
the Net Proceeds from which are applied in accordance with Section 4.08
hereof);
(v) Liens on Capital Stock of any Subsidiary of the Company to
secure Indebtedness incurred under the Credit Agreement; or
(vi) Liens on Capital Stock of any Subsidiary of the Company
granted in accordance with the provisions of Section 4.11 hereof.
SECTION 4.14. Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Subsidiaries. The Company shall not, and shall not permit any of its
----------------------
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to:
(a) pay dividends or make any other distributions to the Company or
any of its Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits; or
(b) pay any Indebtedness or other obligation owed to the Company or
any of its Subsidiaries; or
(c) make loans or advances to the Company or any of its Subsidiaries;
or
(d) sell, lease or transfer any of its properties or assets to the
Company or any of its Subsidiaries; or
(e) grant liens or security interests on its assets in favor of the
Holders of Notes; or
(f) guarantee the obligations of the Company evidenced by the Notes
or any renewals, refinancings, exchanges, refundings or extensions thereof,
except for such encumbrances or restrictions existing under or by reason of:
(i) this Indenture and the Notes;
(ii) the Credit Agreement as in effect on the Closing Date;
(iii) applicable law;
54
(iv) any instrument governing Acquired Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Subsidiaries as in
effect at the time of such acquisition (except to the extent such Acquired
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that the
--------
Consolidated EBITDA of such Person is not taken into account in determining
whether such acquisition was permitted by the terms of this Indenture;
(v) any document or instrument governing Indebtedness incurred
pursuant to clause (iii) of the definition of Permitted Indebtedness;
provided that any such restriction contained therein relates only to the
--------
asset or assets constructed or acquired in connection therewith; or
(v) Permitted Refinancing Indebtedness of Indebtedness
described in clause (ii) and clause (iv) of this Section 4.14(f), provided
--------
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in
the agreements governing the Indebtedness being refinanced.
SECTION 4.15. Limitation on Layering Debt. Neither the Company nor any
---------------------------
Subsidiary may, directly or indirectly, in any event Incur any Indebtedness
which by its terms (or by the terms of any agreement governing such
Indebtedness) is expressly subordinated to any other Indebtedness of the Company
or such Subsidiary, as the case may be, unless such Indebtedness is also by its
terms (or by the terms of any agreement governing such Indebtedness) made
expressly subordinate to the Notes to the same extent and in the same manner,
and so long as, such Indebtedness is subordinated pursuant to subordination
provisions that are no more favorable to the holders of any other Indebtedness
of the Company or such Subsidiary, as the case may be.
SECTION 4.16. Transactions with Affiliates. The Company shall not, and
----------------------------
shall not permit any of its Subsidiaries to, enter into or suffer to exist any
transaction or a series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate (each of the foregoing, an "Affiliate Transaction"), other than Exempt
Affiliate Transactions, unless:
(a) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Subsidiary with a
Person that is not an Affiliate; and
(b) the Company delivers to the Trustee (i) with respect to any
Affiliate Transaction entered into after the date of this Indenture involving
aggregate consideration in excess of $2.5 million, a Board Resolution duly
adopted by a committee of independent Directors of the Company, as set forth in
an Officer's Certificate, certifying that such Affiliate Transaction complies
with clause (a) above and (ii) with respect to any Affiliate Transaction
involving aggregate consideration equal to or greater than $10.0 million, a
written opinion issued by an
55
independent financial advisor of national standing that such Affiliate
Transaction is fair to the Company or such Subsidiary, as the case may be, from
a financial point of view.
SECTION 4.17. Reports. Whether or not required by the rules and
-------
regulations of the Commission, so long as any Notes are outstanding, the Company
furnish to the Holders of Notes and file with the Trustee, within 15 days after
it is or would have been required to file such with the Commission all
information, documents and reports specified in Section 13 and Section 15(d) of
the Exchange Act. In addition, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information, documents and reports with the Commission for public availability
(unless the Commission will not accept such a filing) and make such information
available to securities analysts and prospective investors. In addition, the
Company has agreed that, for so long as any Notes remain outstanding, it will
furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information specified in Rule 144A(d)(4) under the
Securities Act. The Company also shall comply with the other provisions of
Section 314(a) of the Trust Indenture Act.
SECTION 4.18. Payments for Consent, Waiver or Amendment. Neither
-----------------------------------------
the Company nor any of its Subsidiaries 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 terms or provisions of the Notes, unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Notes which so
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or amendment.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws. The Company and
---------------------------------------
the Guarantors will not at any time, to the extent that they may lawfully not do
so, insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company or the Guarantors from paying all or any
portion of the principal of or premium, if any, or interest or Additional
Interest, if any, on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or that may affect the covenants or the
performance of this Indenture; and, to the extent that they may lawfully do so,
the Company and the Guarantors hereby expressly waive all benefit or advantage
of any such law and expressly agree that they will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.20. Compliance Certificate: Notice of Default or Event of
-----------------------------------------------------
Default. (a) The Company shall deliver to the Trustee within 120 calendar
-------
days after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate stating whether or not, to the best knowledge
of such officer, the Company has complied with all conditions and covenants
under this Indenture, and, if the Company shall be in Default, specifying all
such Defaults and the nature thereof of which such officer may have knowledge.
For the purposes of this Section 4.20(a), compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
56
(b) The Company shall deliver written notice to the Trustee
immediately upon any executive officer of the Company becoming aware of the
occurrence of any event which constitutes, or with the giving of notice or the
lapse of time or both would constitute, a Default or Event of Default,
describing such Default or Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.
(c) So long as not contrary to the then-current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.17 hereof shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article IV or Article V hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
SECTION 4.21. Investment Company Act. None of the Company or its
----------------------
Subsidiaries shall become an investment company subject to registration under
the Investment Company Act of 1940, as amended.
SECTION 4.22. 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.
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.01. Merger, Consolidation or Sale of Assets. The
---------------------------------------
Company shall not, and shall not permit any Subsidiary of the Company to, in a
single transaction or series of related transactions, consolidate or merge with
or into (other than the consolidation or merger of a Wholly-Owned Subsidiary of
the Company with another Wholly-Owned Subsidiary of the Company or into the
Company) (whether or not the Company or such Subsidiary is the surviving
corporation), or directly and/or indirectly through its Subsidiaries sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company and its Subsidiaries (determined on a
consolidated basis for the Company and its Subsidiaries taken as a whole) in one
or more related transactions to, another corporation, Person or entity unless:
(a) either (i) the Company, in the case of a transaction involving
the Company, or such Subsidiary, in the case of a transaction involving a
Subsidiary of the Company, is the surviving corporation or (ii) in the case of a
transaction involving the Company or a Guarantor, the entity or the Person
formed by or surviving any such consolidation or merger (if other than the
Company or such Guarantor) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation organized
or existing under the laws of the United States of America, any state thereof or
the District of Columbia and expressly assumes all
57
the obligations of the Company under the Notes and this Indenture or such
Guarantor under the relevant Note Guarantee and this Indenture, as the case may
be, pursuant to a supplemental indenture in a form reasonably satisfactory to
the Trustee;
(b) immediately prior to or after such transaction no Default or
Event of Default shall have occurred and/or be continuing;
(c) in the case of a transaction involving the Company, the Company
or, if other than the Company, the entity or Person formed by or surviving any
such consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (i) will have
Consolidated Net Worth immediately after the transaction equal to or greater
than the Consolidated Net Worth of the Company immediately preceding the
transaction, and (ii) will, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09 hereof;
(d) if, as a result of any such transaction, property or assets of
the Company or a Guarantor would become subject to a Lien securing Indebtedness
not excepted from the provisions of this Indenture described in Section 4.11
hereof, the Company, any such Guarantor or the surviving entity, as the case may
be, shall have secured the Notes and the relevant Note Guarantee, as required by
such provisions; and
(e) the Company shall have delivered to the Trustee, an Officers'
Certificate and, except in the case of a merger of a Subsidiary of the Company
into the Company or into a Wholly-Owned Subsidiary of the Company, an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, lease or
disposition and any supplemental indenture with respect thereto, comply with all
of the terms of this Section 5.01 and that all conditions precedent herein
provided relating to such transaction or series of transactions have been
complied with.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 5.02. Successor Corporation Substituted. Upon any
---------------------------------
consolidation with, or merger by the Company with and into, any other
corporation, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Property of the Company and its
Subsidiaries taken as a whole in accordance with Section 5.01 hereof, the
successor corporation formed by such consolidation or into which the Company is
merged, or the Person to which such sale, conveyance, assignment, transfer,
lease, conveyance or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person has been named
as the Company herein; and thereafter the predecessor corporation shall be
relieved
58
of all obligations and covenants under this Indenture and the Notes, except for
------
the obligation to pay the principal of, premium, if any, and interest or
Additional Interest, if any, on the Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. The term "Event of Default,"
-----------------
wherever used herein with respect to the Notes, means any one of the following
events (whatever the reason for such event, and whether it shall be voluntary or
involuntary, or be effected by operation of law, pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the Company fails to make any payment of interest on, or
Additional Interest with respect to, any Note when the same becomes due and
payable and such failure continues for a period of 30 calendar days; or
(b) the Company fails to make any payment of the principal or of
premium, if any, on any Note when the same becomes due and payable at Maturity;
or
(c) the Company fails to observe or perform any covenant, condition
or agreement on the part of the Company to be observed or performed pursuant to
Sections 4.07, 4.08, 4.09, 4.10, 4.13 and 5.01 hereof; or
(d) the Company fails to comply with any of its other agreements or
covenants in provisions of the Notes or this Indenture and such failure
continues for 30 days after written notice by the Trustee or Holders of at least
25% of the aggregate principal amount of the Notes outstanding; or
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Subsidiaries
(or the payment of which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default (i) is caused by a failure to
pay principal of such Indebtedness at final maturity thereof (after giving
effect to applicable grace periods) (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness as to which there has been a Payment
Default or the maturity of which has been so accelerated, exceeds in the
aggregate $5.0 million; or
(f) a final judgment or final judgments for the payment of money not
covered by insurance are entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment or judgments
remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
--------
undischarged judgments exceeds $5.0 million; or
59
(g) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any Subsidiary of the
Company in an involuntary case or proceeding under any Bankruptcy Law or (ii) a
decree or order (A) adjudging the Company or any Subsidiary of the Company a
bankrupt or insolvent, or (B) approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of, or in respect of, the
Company or any Subsidiary of the Company under any Bankruptcy Law, or (C)
appointing a Custodian of the Company or any Subsidiary of the Company or of any
substantial part of the Property of the Company or any Subsidiary of the
Company, or (D) ordering the winding-up or liquidation of the affairs of the
Company or any Subsidiary of the Company, and in each case, the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive calendar days; or
(h) (i) the commencement by the Company or any Subsidiary of the
Company of a voluntary case or proceeding under any Bankruptcy Law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent; or (ii) the
consent by the Company or any Subsidiary of the Company to the entry of a decree
or order for relief in respect of the Company or any Subsidiary of the Company
in an involuntary case or proceeding under any Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company or any Subsidiary of the Company; or (iii) the filing by the Company or
any Subsidiary of the Company of a petition or answer or consent seeking
reorganization or relief under any Bankruptcy Law; or (iv) the consent by the
Company or any Subsidiary of the Company to the filing of such petition or to
the appointment of or taking possession by a Custodian of the Company or any
Subsidiary of the Company or of any substantial part of the Property of the
Company or any Subsidiary of the Company, or (v) the making by the Company or
any Subsidiary of the Company of an assignment for the benefit of creditors; or
(vi) the admission by the Company or any Subsidiary of the Company in writing of
its inability to pay its debts generally as they become due; or (vii) the
approval by stockholders of the Company or any Subsidiary of the Company of any
plan or proposal for the liquidation or dissolution of the Company or any
Subsidiary of the Company; or (viii) the taking of corporate action by the
Company or any Subsidiary of the Company in furtherance of any such action; or
(i) the Note Guarantee of any Guarantor is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect (other than in accordance with the terms of this Indenture) or
any Guarantor or any Person acting on behalf of any Guarantor denies or
disaffirms such Guarantor's obligations under its Note Guarantee (other than by
reason of a release of such Guarantor from its Note Guarantee in accordance with
the terms of this Indenture).
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in Section 6.01(g) or Section 6.01(h)) occurs and is
continuing, then and in every such case the Trustee by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of all of the then
outstanding Notes by written notice to the Company and the Trustee may declare
the unpaid principal of and any accrued interest on all the Notes then
outstanding to be immediately due and payable. Upon such declaration the
principal and interest shall be due and payable immediately (together with any
premium or Additional Interest, if applicable). If an Event of Default specified
in Section 6.01(g) or Section 6.01(h) hereof occurs,
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such an amount shall ipso facto become and be immediately due and payable
----------
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee and the Company may rescind
and annul such acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest, premium or Additional Interest that
have become due solely because of the acceleration) have been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies. The Company covenants that if an
--------------
Event of Default specified in Section 6.01(a) or Section 6.01(b) occurs the
Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit
of the Holders, the whole amount then due and payable on the Notes for principal
(and premium, if any) and interest (and Additional Interest, if any) and, to the
extent that payment of such interest shall be legally enforceable, interest upon
the overdue principal (and premium, if any) and upon Defaulted Interest (and
Additional Interest, if any) at the rate or rates prescribed therefor in the
Notes; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents,
counsel, accountants, experts and other consultants and all other amounts due to
the Trustee pursuant to Section 7.07 hereof.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, each Guarantor or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the Property of the Company, each Guarantor or any other obligor upon
the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Waiver of Past Defaults. The Holders of not less
-----------------------
than a majority in principal amount of the outstanding Notes by notice to the
Trustee may, on behalf of the Holders of all the Notes, waive any existing
Default or Event of Default and its consequences under this Article VI, except a
continuing Default or Event of Default (a) in the payment of the principal of,
premium, if any, or interest or Additional Interest, if any, on any Note (except
a payment default resulting from an acceleration that has been rescinded), or
(b) in respect of a covenant or provision hereof which under Section 9.02 hereof
cannot be modified or amended without the consent of the Holder of each
outstanding Note. Any such waiver may (but need not) be given in connection
with a tender offer or exchange offer for the Notes.
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SECTION 6.05. Control by Majority. The Holders of not less than
-------------------
a majority in principal amount of the outstanding Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that:
--------
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or unduly prejudicial to the rights of other Holders and
would not subject the Trustee to personal liability, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits. No Holder shall have any right to
-------------------
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Notes;
(b) the Holders of not less than 25% in principal amount of the
outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee security or
indemnity satisfactory to the Trustee in its reasonable discretion against the
costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 30 calendar days after its receipt of such
notice, request and offer of security or indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the Holders of a majority in
principal amount of the outstanding Notes;
in any event, it being understood and intended that no one or more Holders shall
have any right in any manner whatever by virtue of, or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all Holders.
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 or premium, if any, and interest and Additional
Interest, if any, on the Notes held by such Holder, on or after the respective
due dates expressed in the Notes or the Redemption Dates or purchase dates
provided for therein, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall be absolute and unconditional and shall
not be impaired or affected without the consent of such Holder.
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SECTION 6.08. Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings or any voluntary or involuntary case under any Bankruptcy Law,
relative to the Company or any other obligor upon the Notes or the Property of
the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise, (i) to file and prove a claim for the whole
amount of principal of, premium, if any, and interest and Additional Interest,
if any, owing and unpaid in respect of the Notes, to file such other papers or
documents and to take such other actions, including participating as a member or
otherwise in any official committee of creditors appointed in the matter, as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due to the Trustee
pursuant to Section 7.07 hereof) and of the Holders allowed in such judicial
proceeding, and (ii) to collect and receive any moneys or other Property payable
or deliverable on any such claims and to distribute the same; and any Custodian,
in any such proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.09. Priorities. Any money collected by the Trustee
----------
pursuant to this Article VI shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal, premium, if any, or interest or Additional Interest, if
any, upon presentation of the Notes and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07 hereof;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium, if any, and interest and Additional Interest, if
any, on the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal,
premium, if any, and interest and Additional Interest, if any,
respectively; and
THIRD: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.09. At least 15 calendar days before such
record date, the Company shall mail to each Holder and the Trustee a notice that
states such record date, the payment date
63
and amount to be paid. The Trustee may mail such notice in the name and at the
expense of the Company.
SECTION 6.10. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest or
Additional Interest, if any, on any Note on or after its Stated Maturity.
SECTION 6.11. Waiver of Stay or Extension Laws. The Company (to the
--------------------------------
extent it may lawfully do so) shall not 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 (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.
SECTION 6.12. Trustee May Enforce Claims Without Possession of the
----------------------------------------------------
Notes. All rights of action and claims under this Indenture or the Notes
-----
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes.
SECTION 6.13. Restoration of Rights and Remedies. If the Trustee
----------------------------------
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.14. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided in Section 2.07 hereof, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
64
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.15. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article VI or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
-----------------
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and shall use the same degree of care and skill
in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default: (i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and (ii) in the absence
of bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; provided that in the case of any such
--------
certificates or opinions that by any provision of this Indenture are
specifically required to be furnished to the Trustee, the Trustee shall examine
such certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, provided that: (i) this paragraph (c) shall not limit the effect of
--------
paragraph (b) of this Section 7.01; (ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and (iii) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section
6.05 hereof.
(d) 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.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
65
believing that repayment of such funds or adequate indemnity against such risk
of liability is not reasonably assured to it.
(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 Article VII and to the provisions of the Trust
Indenture Act.
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. Except as provided in Section 7.01(b) hereof, the Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on any
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 such agent; provided that such agent was
--------
appointed with due care by the Trustee.
(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 that the Trustee's conduct does not constitute willful
--------
misconduct or negligence.
(e) The Trustee shall not be charged with knowledge of any Default or
Event of Default under Sections 6.01(c), 6.01(d), 6.01(e), 6.01(f), 6.01(g),
6.01(h) or 6.01(i) hereof, of the identity of any Subsidiary or of the existence
of any Change of Control or Asset Sale unless either (i) a Trust Officer with
responsibility for the administration of this Indenture shall have actual
knowledge thereof, or (ii) the Trustee shall have received notice thereof in
accordance with Section 11.02 hereof from the Company or any Holder.
(f) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee, any Paying
----------------------------
Agent or Registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company, the
Guarantors or their Affiliates with the same rights it
66
would have if it were not Trustee, Paying Agent or Registrar hereunder, as the
case may be; provided that the Trustee must in any event comply with Section
--------
7.10 and Section 7.11 hereof.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible (a) for any
statement of the Company in this Indenture, including the recitals contained
herein, 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 or (b) for
compliance by the Company with the Registration Rights Agreement.
SECTION 7.05. Notice of Defaults. Within 90 calendar days after the
------------------
occurrence of any Default hereunder with respect to the Notes, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the Note
Register, notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided that, except in the case of a
--------
Default in the payment of the principal of (or premium, if any) or interest (or
Additional Interest) on any Note, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Trust Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders.
SECTION 7.06. Preservation of Information; Reports; by Trustee to
---------------------------------------------------
Holders. (a) The Company shall furnish or cause to be furnished to the
-------
Trustee:
(i) semiannually, not less than 10 calendar days prior to each
Interest Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of the Record Date
immediately preceding such Interest Payment Date, and
(ii) at such other times as the Trustee may request in writing,
within 30 calendar days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
calendar days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar for
-------- -------
the Notes, no such list need be furnished with respect to the Notes.
(b) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.06(a) hereof and the
names and addresses of Holders received by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.06(a) hereof upon receipt of a new list so furnished.
(c) Holders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or under the Notes.
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(d) Each Holder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with this Section 7.06, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under this Section 7.06.
(e) Within 60 calendar days after December 31 of each year commencing
with the year 1997, the Trustee shall transmit by mail to all Holders, a brief
report dated as of such December 31 if and to the extent required under Section
313(a) of the Trust Indenture Act.
(f) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
(g) A copy of each report described in Sections 7.06(e) and (f)
hereof shall, at the time of its transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which the Notes are then listed,
with the Commission and also with the Company. The Company shall promptly notify
the Trustee of any stock exchange upon which the Notes are listed.
SECTION 7.07. Compensation and Indemnity. (a) The Company shall pay
--------------------------
to the Trustee from time to time such compensation for its services as the
Company and the Trustee shall from time to time agree. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants, experts and other consultants. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust.
(b) The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss, liability, damage, claim or expense (including
reasonable attorneys' fees and expenses) arising out of or incurred by it in
connection with the acceptance or administration of the trust created by this
Indenture and the performance of its duties hereunder, except as set forth in
the next paragraph. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend any such claim and the Trustee shall cooperate in the defense of
such claim. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
(c) The Company need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
68
(d) To secure the Company's payment obligations in this Section 7.07,
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, premium, if any, and interest and Additional Interest, if any, on,
particular Notes.
(e) The Company's payment obligations pursuant to this Section 7.07
shall survive the resignation or removal of the Trustee and discharge of this
Indenture. Subject to any other rights available to the Trustee under
applicable bankruptcy law, when the Trustee incurs expenses after the occurrence
of a Default specified in Section 6.01(g) or Section 6.01(h) hereof, the
expenses are intended to constitute expenses of administration under Bankruptcy
Law.
SECTION 7.08. Replacement of Trustee. (a) No resignation or removal
----------------------
of the Trustee and no appointment of a successor Trustee pursuant to this
Article VII shall become effective until the acceptance of appointment by the
successor Trustee under this Section 7.08.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 calendar days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the outstanding Notes, delivered to the Trustee
and to the Company. A successor Trustee may be appointed by Act of the Holders
with the Company's consent. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 calendar days
after the giving of notice of removal, the Trustee being removed may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, unless the Trustee's duty to resign is stayed in accordance with
the provisions of Section 310(b) of the Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible under Section 7.10
hereof and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting or a decree
or order for relief by a court having jurisdiction in the premises shall
have been entered in respect of the Trustee in an involuntary case under
any Bankruptcy Law; or a decree or order by a court having jurisdiction in
the premises shall have been entered for the appointment of a Custodian of
the Trustee or of its Property or affairs, or any public officer shall take
69
charge or control of the Trustee or of its Property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation; or
(iv) the Trustee shall commence a voluntary case under any
Bankruptcy Law or shall consent to the appointment of or taking possession
by a Custodian of the Trustee or its Property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to the Notes, or (ii) subject to Section 6.10 hereof, any
Holder who has been a bona fide Holder of a Note for at least six months may
petition, on behalf of such Holder and all others similarly situated, any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee for the Notes. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
calendar days after the giving of notice of removal, the Trustee being removed
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by the Holders of a majority in principal amount of the outstanding
Notes delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with this Section 7.08, become the successor Trustee and to that
extent replace any successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and shall
have accepted appointment in the manner hereinafter provided, any Holder that
has been a bona fide Holder for at least six months may, subject to Section 6.10
hereof, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such resignation, removal and appointment by first-class mail,
postage prepaid, to the Holders as their names and addresses appear in the Note
Register. Each notice shall include the name of the successor Trustee with
respect to the Notes and the address of its Corporate Trust Office.
(g) In the event of an appointment hereunder of a successor Trustee,
each such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign,
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transfer and deliver to such successor Trustee all Property and money held by
such former Trustee hereunder, subject to its Liens, if any, provided for in
Section 7.07 hereof.
(h) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Section 7.08(g) hereof.
(i) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article VII and under the Trust Indenture Act.
SECTION 7.09. Successor Trustee by Merger. Any corporation into
---------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided that such
--------
corporation shall be otherwise qualified and eligible under this Article VII and
under the Trust Indenture Act, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Notes
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Notes. In the event that any Notes shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Notes, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 7.10. Eligibility; Disqualification. (a) There shall at all
-----------------------------
times be a Trustee hereunder which shall be:
(i) a corporation organized and doing business under the laws of the
United States of America, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority; or
(ii) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under
such laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000.
(b) If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 7.10, the combined capital and
surplus of such corporation shall be
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deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Guarantor nor any
of their respective Affiliates shall serve as Trustee hereunder. If at any time
the Trustee shall cease to be eligible to serve as Trustee hereunder pursuant to
the provisions of this Section 7.10, it shall resign immediately in the manner
and with the effect specified in this Article VII.
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
ARTICLE VIII
DEFEASANCE
SECTION 8.01. Company's Option to Effect Legal Defeasance or Covenant
-------------------------------------------------------
Defeasance. The Company may elect, at its option, at any time, to have Section
----------
8.02 or Section 8.03 hereof applied to the outstanding Notes (in whole and not
in part) upon compliance with the conditions set forth below in this Article
VIII. Such election shall be evidenced by a Board Resolution delivered to the
Trustee and shall specify whether the Notes are being defeased to Stated
Maturity or to a specified Redemption Date determined in accordance with the
terms of this Indenture and the Notes.
SECTION 8.02. Legal Defeasance and Discharge. Upon the Company's
------------------------------
exercise under Section 8.01 hereof of its option to have this Section 8.02
applied to the outstanding Notes (in whole and not in part), the Company and the
Guarantors shall be deemed to have been discharged from their obligations with
respect to such Notes as provided in this Section 8.02 on and after the date the
conditions set forth in Section 8.04 hereof are satisfied (hereinafter called
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Notes which shall thereafter be deemed to be "outstanding"
only for the purpose of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, premium, if any, and interest and Additional
Interest, if any, on such Notes when payments are due from the trust referred to
below,
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(b) the Company's obligations with respect to such Notes under
Sections 2.03, 2.04, 2.06, 2.07, 2.09, 4.02, 4.03 and 4.04 hereof,
(c) the Company's obligations under the Registration Rights
Agreement,
(d) the rights, powers, trusts, duties and immunities of the Trustee
under this Indenture and the Company's obligations in connection therewith,
(e) Article III hereof, and
(f) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise
its option to have this Section 8.02 applied to the outstanding Notes (in whole
and not in part) notwithstanding the prior exercise of its option to have
Section 8.03 hereof applied to such Notes.
SECTION 8.03. Covenant Defeasance. Upon the Company's exercise under
-------------------
Section 8.01 hereof of its option to have this Section 8.03 applied to the
outstanding Notes (in whole and not in part):
(a) the Company shall be released from its obligations under
Sections 4.05 through 4.17, inclusive, and Section 5.01(c);
(b) the occurrence of any event specified in Section 6.01(c), or
Section 6.01(d) hereof, with respect to any of Section 5.01(c) or Sections 4.05
through 4.17, inclusive, shall be deemed not to be or result in an Event of
Default, in each case with respect to such Notes as provided in this Section
8.03 on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter called "Covenant Defeasance"); and
(c) the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes).
For this purpose, such Covenant Defeasance means that, with respect to
such Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Sections 6.01(c) and 6.01(d)
hereof), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document; but the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(e) and 6.01(f) hereof shall thereafter not
constitute Events of Default.
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SECTION 8.04. Conditions to Legal Defeasance or Covenant Defeasance.
-----------------------------------------------------
The following shall be the conditions to the application of
Section 8.02 or Section 8.03 hereof to the outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to the benefits of the Holders, (i) cash in United States dollars, or (ii) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in United States
dollars, or (iii) a combination thereof, in each case sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of, premium, if any, and any installment of
interest and Additional Interest on the outstanding Notes on the Stated Maturity
thereof or applicable Redemption Date, as the case may be, in accordance with
the terms of this Indenture and such Notes;
(b) In the event of an election to have Section 8.02 hereof apply to
the outstanding Notes, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee
stating that (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (ii) since the date of this Indenture,
there has been a change in the applicable Federal income tax law, in either case
(i) or (ii) to the effect that, and based thereon such opinion shall confirm
that, the Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of the deposit, Legal Defeasance and discharge to be
effected with respect to such Notes and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would be the case
if such deposit, Legal Defeasance and discharge were not to occur;
(c) In the event of an election to have Section 8.03 hereof apply to
the outstanding Notes, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee
stating that the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Notes and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur;
(d) No Default or Event of Default with respect to the outstanding
Notes shall have occurred and be continuing at the time of such deposit (other
than a Default or Event of Default resulting from the borrowing of funds (or the
granting of a Lien as security therefor) to be applied to such deposit) after
giving effect thereto or, with respect to a Default or Event of Default
specified in Section 6.01(g) or Section 6.01(h), any time on or prior to the
123rd calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 123rd calendar day);
74
(e) Such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming for the purpose of this clause (e) that all Notes are in default
within the meaning of such Act);
(f) Such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, the Credit Agreement or
any other material agreement or instrument (other than the Indenture) to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound;
(g) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or the
Guarantors or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company, the Guarantors or others;
(h) Such Legal Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder; and
(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Legal Defeasance or Covenant Defeasance have been
complied with.
SECTION 8.05. Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held in Trust; Miscellaneous Provisions. (a) All money and U.S. Government
---------------------------------------
Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 8.04 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any such
Paying Agent as the Trustee may determine, to the Holders of such Notes, of all
sums due and to become due thereon in respect of principal and any premium and
interest and Additional Interest, but money so held in trust need not be
segregated from other funds except to the extent required by law. The Company
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 8.04 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of outstanding Notes.
(b) Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon receipt of a
Company Order any money or U.S. Government Obligations held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be
required to be deposited to effect the Legal Defeasance or Covenant Defeasance,
as the case may be, with respect to the outstanding Notes.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money in accordance with this Article VIII with respect to
any Notes by reason of any order
75
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Notes from which the Company and the Guarantors have been
discharged or released pursuant to Section 8.02 or 8.03 hereof shall be revived
and reinstated as though no deposit had occurred pursuant to this Article VIII
with respect to such Notes, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 8.05 hereof with
respect to such Notes in accordance with this Article VIII; provided that if the
--------
Company makes any payment of principal of or any premium or interest or
Additional Interest on any such Note following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Notes to receive such payment from the money so held in trust.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Company, the
--------------------------
Guarantors and the Trustee may, at any time, and from time to time, without
notice to or consent of any Holder, enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by such successor of the covenants of the Company herein and
contained in the Notes; or
(b) to add to the covenants of the Company, for the benefit of the
Holders of all of the Notes, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Notes in addition to or in place of
Certificated Notes; or
(e) to evidence and provide for the acceptance of appointment
hereunder of a successor Trustee; or
(f) to secure the Notes; or
(g) to cure any ambiguity herein, or to correct or supplement any
provision hereof which may be inconsistent with any other provision hereof or to
add any other provisions with respect to matters or questions arising under this
Indenture; provided that such actions shall not adversely affect the interests
--------
of the Holders in any material respect; or
(h) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act; or
(i) to evidence the agreement or acknowledgment of a Subsidiary that
it is a Guarantor for all purposes under this Indenture (including, without
limitation, Article X hereof).
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SECTION 9.02. With Consent of Holders. (a) With the consent of the
-----------------------
Holders of not less than a majority in principal amount of the outstanding
Notes (which consent may, but need not, be given in connection with any tender
offer or exchange offer for the Notes), by Act of said Holders delivered to the
Company and the Trustee, the Company, the Guarantors and the Trustee may enter
into one or more indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders
(including Sections 4.07 and 4.08 hereof); provided that no such supplemental
--------
indenture shall, without the consent of the Holder of each outstanding Note:
(i) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver; or
(ii) reduce the principal of or premium on or change the Stated
Maturity of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes, except as provided above with respect to
Sections 4.07 and 4.08 hereof; or
(iii) reduce the rate of or change the time for payment of interest,
including Defaulted Interest, on any Note; or
(iv) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest or Additional Interest, if any, on any
Note (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding
Notes and a waiver of the payment default that resulted from such
acceleration); or
(v) make any Note payable in money other than that stated in the
Notes; or
(vi) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of or premium, if any, or interest or Additional Interest, if
any, on the Notes; or
(vii) waive a redemption payment with respect to any Note (other than
a payment required by Section 4.07 or Section 4.08 hereof); or
(viii) modify the ranking or priority of the Notes or the Note
Guarantee of any Guarantor; or
(ix) release any Guarantor from any of its obligations under its
Note Guarantee or this Indenture other than in accordance with the terms of
this Indenture; or
(x) make any change in Sections 6.04 or 6.07 hereof or the
foregoing amendment and waiver provisions.
(b) It shall not be necessary for any Act of Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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(c) After an amendment or supplement under this Section or a waiver
under Section 6.04 becomes effective, the Company shall mail to the Holders a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not however, in
any way impair or affect the validity of any such amended or supplemented
indenture or waiver.
SECTION 9.03. Effect of Supplemental Indentures. Upon the
---------------------------------
execution of any supplemental indenture under this Article IX, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of a Note
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.04. Compliance with Trust Indenture Act. Every
-----------------------------------
amendment or supplement to this Indenture or the Notes shall comply with the
Trust Indenture Act as then in effect.
SECTION 9.05. Revocation and Effect of Consents and Waivers. (a)
---------------------------------------------
A consent to an amendment, supplement or a waiver by a Holder of a Note shall
bind the Holder and every subsequent Holder of such Note or portion of such Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent or waiver is not made on such Note; provided that any such Holder
--------
or subsequent Holder may revoke the consent or waiver as to such Holder's Note
or portion of such Note if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective. After an
amendment, supplement or waiver becomes effective pursuant to this Article IX,
it shall bind every Holder.
(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 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
calendar days after such record date.
SECTION 9.06. Notation on or Exchange of Notes. If a supplemental
--------------------------------
indenture changes the terms of a Note, the Trustee may require the Holder
thereof to deliver such Note to the Trustee. The Trustee may place an
appropriate notation on such 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 such 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
or supplement.
SECTION 9.07. Trustee to Execute Supplemental Indentures. The
------------------------------------------
Trustee shall execute any supplemental indenture authorized pursuant to this
Article IX if such supplemental indenture does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but shall not be required to, execute such supplemental indenture. In
78
executing any supplemental indenture, the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to Section
7.01 hereof) shall be fully protected in relying upon, an Officers' Certificate
(which need only cover the matters set forth in clause (a) below) and an Opinion
of Counsel provided by the Company stating that:
(a) such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution, delivery and
performance of such supplemental indenture have been satisfied;
(b) the Company and each Guarantor have all necessary corporate power
and authority to execute and deliver the supplemental indenture and the
execution, delivery and performance of such supplemental indenture have been
duly authorized by all necessary corporate action of the Company and each
Guarantor;
(c) the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of (i) this Indenture,
(ii) the charter documents and By-Laws of the Company or any Guarantor or (iii)
any material agreement or instrument to which the Company or any Guarantor is
subject;
(d) to the best knowledge and belief of legal counsel writing such
Opinion of Counsel, the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of any of the terms,
conditions or provisions of (i) any law or regulation applicable to the Company
or any Guarantor or (ii) any material order, writ, injunction or decree of any
court or governmental instrumentality applicable to the Company or any
Guarantor;
(e) such supplemental indenture has been duly and validly executed and
delivered by the Company and each Guarantor, and this Indenture together with
such supplemental indenture constitutes a legal, valid and binding obligation of
the Company and each Guarantor enforceable against the Company and each
Guarantor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles; and
(f) this Indenture together with such amendment or supplement complies
with the Trust Indenture Act.
ARTICLE X
NOTE GUARANTEES; RELEASE OF NOTE GUARANTEES
SECTION 10.01. Note Guarantees. (a) Subject to the provisions of
---------------
this Article X, each Person who shall become a Guarantor shall, jointly and
severally, irrevocably and unconditionally Guarantee to each Holder and to the
Trustee on behalf of the Holders (i) the due and punctual payment of principal
of, premium, if any, interest and Additional Interest, if any, in full on each
Note when and as the same shall become due and payable whether at Stated
Maturity, by declaration of acceleration, in connection with a Change of Control
Offer, Asset Sale Offer or
79
redemption, or otherwise, (ii) the due and punctual payment of interest on the
overdue principal of, premium, if any, interest and Additional Interest, if any,
in full on the Notes, to the extent permitted by law, and (iii) the due and
punctual performance of all other Obligations of the Company and the other
Guarantors to the Holders or the Trustee, including without limitation the
payment of fees, expenses, indemnification or other amounts, all in accordance
with the terms of the Notes and this Indenture. In case of the failure of the
Company punctually to make any such principal or interest payment or the failure
of the Company or any other Guarantor to perform any such other Obligation, each
Guarantor shall cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity by declaration of
acceleration, in connection with a Change of Control Offer, Asset Sale Offer or
redemption or otherwise, and as if such payment were made by the Company and to
perform any such other Obligation of the Company immediately. Each Guarantor
shall agree to pay any and all expenses (including reasonable counsel fees and
expenses) incurred by the Trustee or the Holders in enforcing any rights under
these Note Guarantees. The Note Guarantees under this Article X shall be
guarantees of payment and not of collection.
(b) The Company hereby waives and each Guarantor shall waive
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger, insolvency or bankruptcy of the Company or any other Guarantor,
any right to require a proceeding first against the Company or any other
Guarantor, protest or notice with respect to the Notes or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants that the Note
Guarantees will not be discharged except by complete performance of the
Obligations contained in the Notes, in this Indenture and pursuant to the Note
Guarantees.
(c) Each Guarantor shall waive and relinquish:
(i) any right to require the Trustee, the Holders or the Company
(each, a "Benefited Party") to proceed against the Company, the
Subsidiaries of the Company or any other Person or to proceed against or
exhaust any security held by a Benefited Party at any time or to pursue any
other remedy in any secured party's power before proceeding against such
Guarantor;
(ii) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other Person or Persons or the
failure of a Benefited Party to file or enforce a claim against the estate
(in administration, bankruptcy or any other proceeding) of any other Person
or Persons;
(iii) demand, protest and notice of any kind (except as expressly
required by this Indenture), including but not limited to notice of the
existence, creation or incurring of any new or additional Indebtedness or
obligation or of any action or non-action on the part of any of the
Guarantors, the Company, the Subsidiaries of the Company, any Benefited
Party, or any creditor of the Guarantors, the Company or the Subsidiaries
of the Company or on the part of any other Person whomsoever in connection
with any obligations the performance of which are hereby guaranteed;
80
(iv) any defense based upon an election of remedies by a Benefited
Party, including but not limited to an election to proceed against any
Guarantor for reimbursement;
(v) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal;
(vi) any defense arising because of a Benefited Party's election, in
any proceeding instituted under the Bankruptcy Law, of the application of
Section 11.11(b)(2) of the Bankruptcy Law; and
(vii) any defense based on any borrowing or grant of a security
interest under Section 364 of the Bankruptcy Law.
(d) Each Guarantor shall agree that, as between such Guarantor, on the
one hand, and Holders and the Trustee, on the other hand, (i) for purposes of
the relevant Note Guarantee, the maturity of the Obligations Guaranteed by such
Note Guarantee may be accelerated as provided in Article VI, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed thereby, and (ii) in the event of any acceleration of
such Obligations (whether or not due and payable) such Obligations shall
forthwith become due and payable by such Guarantor for purposes of such Note
Guarantee.
(e) The Note Guarantees shall be continuing guarantees and shall (a)
remain in full force and effect until payment in full of all of the Company's
Obligations under this Indenture and the Notes and (b) inure to the benefit of
and be enforceable by the Trustee, the Holders and their successors, transferees
and assigns.
(f) The Note Guarantees shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment, or any part thereof,
of principal of, premium, if any, or interest or Additional Interest, if any, on
any of the Notes is rescinded or must otherwise be returned by the Holders or
the Trustee upon the insolvency, bankruptcy or reorganization of the Company or
any of the Guarantors, all as though such payment had not been made.
(g) Each Guarantor shall be subrogated to all rights of the Holders
against the Company in respect of any amounts paid by such Guarantor pursuant to
the provisions of the Note Guarantees or this Indenture; provided, however, that
-------- -------
a Guarantor shall not be entitled to enforce or to receive any payments until
the principal of, premium, if any, interest and Additional Interest, if any, on
all Notes issued hereunder shall have been paid in full.
(h) Each Guarantor shall specifically designate the relevant Note
Guarantee as Indebtedness of such Guarantor for purposes of this Indenture.
SECTION 10.02. Obligations of Guarantors Unconditional. Each
---------------------------------------
Guarantor shall agree that its Obligations hereunder are guarantees of payment
and are unconditional, irrespective of and unaffected by the validity,
regularity or enforceability of the Notes or this Indenture, or of any amendment
thereto or hereto, the absence of any action to enforce the same, the waiver or
81
consent by any Holder or by the Trustee with respect to any provisions thereof
or of this Indenture, the entry of any judgment against the Company or any other
Guarantor or any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
SECTION 10.03. Limitation of Guarantor's Liability. Each Guarantor
-----------------------------------
shall confirm and by its acceptance hereof each Holder hereby confirms, that it
is the intention of all such parties that the Note Guarantee by such Guarantor
pursuant to its Note Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal, state or
foreign law. To effectuate the foregoing intention, the Holders hereby
irrevocably agree and each Guarantor shall agree that the Obligations of such
Guarantor under this Article X shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the Obligations of such other
Guarantor under this Article X, result in the Obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance
under applicable federal, state or foreign law.
SECTION 10.04. Release of Note Guarantees. In the event of a sale or
---------------------------
other disposition of all or substantially all of the assets of any Guarantor, by
way of merger, consolidation or otherwise, or a sale or other disposition of all
of the Capital Stock of any Guarantor, by way of merger, consolidation or
otherwise, such Guarantor will be released and relieved of any obligations under
its Note Guarantee; provided, in each case, that (i) such transaction is carried
--------
out pursuant to and in accordance with Section 4.08 and Section 5.01 hereof and
(ii) such Guarantor is also released from its guarantee of the Company's
Obligations under the Credit Agreement and does not guarantee any Senior
Indebtedness. Upon delivery by the Company to the Trustee of an Officers'
Certificate and Opinion of Counsel, to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.08 and Section 5.01 hereof,
the Trustee shall execute any documents reasonably required in order to evidence
the release of any such Guarantor from its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of, premium, if
any, interest and Additional Interest, if any, on the Notes and for the other
Obligations of the Company, such Guarantor and any other Guarantor under this
Indenture as provided in this Article X.
SECTION 10.05. Application of Certain Terms and Provisions to
-------------- -------------------------------
Guarantors. (a) For purposes of any provision of this Indenture which
----------
provides for the delivery by any Guarantor of an Officers' Certificate or an
Opinion of Counsel, or both, the definitions of such terms in Section 1.01
hereof shall apply to such Guarantor as if references therein to the Company
were references to such Guarantor.
(b) Any request, direction, order or demand which by any provision of
this Indenture is to be made by any Guarantor, shall be sufficient if evidenced
by a Company Order;
82
provided that the definition of such term in Section 1.01 hereof shall apply to
--------
such Guarantor as if references therein to the Company were references to such
Guarantor.
(c) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders to
or on any Guarantor may be given or served as described in Section 11.02 hereof.
(d) Upon any demand, request or application by any Guarantor to the
Trustee to take any action under this Indenture, such Guarantor shall furnish to
the Trustee such certificates and opinions as are required in Section 11.03 and
Section 11.04 hereof as if all references therein to the Company were references
to such Guarantor.
SECTION 10.06. Additional Guarantors. The Company shall cause each
---------------------
Person that becomes a Guarantor after the date of this Indenture to execute and
deliver to the Trustee, promptly upon becoming a Guarantor, (a) a supplemental
indenture in form and substance satisfactory to the Trustee pursuant to which
such Person agrees and acknowledges that it is a Guarantor for all purposes of
this Indenture and which subjects such Person to the provisions of this
Indenture as a Guarantor, and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable obligation of such Person
(subject to such customary exceptions concerning fraudulent conveyance laws,
creditors' rights and equitable principles as may be acceptable to the Trustee
in its discretion).
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. 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, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision shall
control.
SECTION 11.02. Notices. (a) Any notice or communication shall be
-------
in writing and any such notice may be given by first class mail, postage prepaid
or courier service, addressed as follows: if to the Company, or any Guarantor:
to The Xxxxxxx Company, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000,
Attention: Secretary; if to the Trustee: SunTrust Bank, Atlanta, 00 Xxxxxxxx
Xxxxxx, Xxxx 000X, Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Administration, and any such notice or communication shall be effective when
delivered or received or, if mailed, five days after deposit in the United
States mail with proper postage for first class mail prepaid.
(b) The Company, a Guarantor or the Trustee, by notice to the others,
may designate additional or different addresses for subsequent notices or
communications. Any notice or communication mailed to a Holder shall be sent to
the Holder by first-class mail, postage prepaid, at the Holder's address as it
appears in the Note Register and shall be duly given if so
83
sent 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 to the Company, the
Trustee or a Holder in the manner provided above, it is duly given, whether or
not the addressee receives it. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
notice by mail to Holders, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
(c) Any notice or communication delivered to the Company under the
provisions herein shall constitute notice to the Guarantors.
SECTION 11.03. 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 upon request: (a) an Officers' Certificate 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 stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 11.04. 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 4.20
hereof) 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, such person has
made such examination or investigation as is necessary to enable such person 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 11.05. Rules by Trustee, Paying Agent and Registrar. The
--------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Holders, and any
Registrar and Paying Agent may make reasonable rules for their functions;
provided that no such rule shall conflict with terms of this Indenture or the
--------
Trust Indenture Act.
SECTION 11.06. Payments on Business Days. If a payment hereunder
-------------------------
is scheduled to be made on a date that is not a Business Day payment shall be
made on the next succeeding day that is a Business Day, and no interest shall
accrue with respect to that payment during the intervening period. If a regular
record date is a date that is not a Business Day, such record date shall not be
affected.
SECTION 11.07. Governing Law, Submission to Jurisdiction.
-----------------------------------------
(a) THIS INDENTURE, THE NOTE GUARANTEES AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
84
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE.
(b) The Company hereby (i) agrees that any suit, action or proceeding
against it arising out of or relating to this Indenture or the Notes, as the
case may be, may be instituted in any Federal or state court sitting in The City
of New York, (ii) waives, to the extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding, and any claim that any suit, action or proceeding in
such a court has been brought in an inconvenient forum, (iii) irrevocably
submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding, (iv) agrees that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding upon each and
may be enforced in the courts of the jurisdiction of which each is subject,
respectively, by a suit upon judgment, (v) agrees that service of process by
mail to the address specified in Section 11.02 hereof shall constitute personal
service of such process on it in any such suit, action or proceeding.
(c) It is the intention of the Company and the Trustee that the situs
of the trust created by this Indenture be, and it be administered, in the state
in which is located the principal office of the Trustee from time to time acting
under this Indenture.
(d) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as Trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture,
and in particular in case of the enforcement thereof on Default, or in case the
Trustee deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the powers, rights or remedies herein or therein granted
to the Trustee or hold title to the properties, in trust, as herein granted, or
take any other action which may be desirable or necessary in connection
therewith, the Trustee may appoint an additional individual or institution as a
separate or co-Trustee, in which event each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-Trustee, but only to the extent necessary to enable such
separate or co-Trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by such separate or
co-Trustee shall run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Company
be required by the separate or co-Trustee so appointed by the Trustee for more
fully and certainly vesting in and confirming to it such properties, rights,
powers, trusts, duties and obligations, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed, acknowledged and
delivered by the Company. In case any separate or co-Trustee, or a successor,
shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such separate or
co-Trustee, so far as permitted by law, shall vest in and be exercised by the
Trustee until the appointment of a successor to such separate or co-Trustee.
Any co-Trustee appointed by the Trustee pursuant to this Section 11.07(d) may
85
be removed by the Trustee, in which case all powers, rights and remedies vested
in the co-Trustee shall again vest in the Trustee as if no such appointment of a
co-Trustee had been made.
SECTION 11.08. No Recourse Against Others. No director, officer,
--------------------------
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Company. No director, officer, employee,
incorporator or stockholder of any Guarantor, as such, shall have any liability
for any obligations of any Guarantor under its Note Guarantee or this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of such Guarantor. By accepting a Note, each Holder
waives and releases all such liability (but only such liability) as part of the
consideration for issuance of such Note to such Holder.
SECTION 11.09. Successors. All agreements of the Company in this
----------
Indenture and the Notes shall bind its successors and assigns whether so
expressed or not. All agreements of the Trustee in this Indenture shall bind
its successors and assigns whether so expressed or not.
SECTION 11.10. Counterparts. This Indenture may be executed in
------------
any number of counterparts and by the parties thereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 11.11. Table of Contents, Headings. The table of
---------------------------
contents, cross-reference table 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.
SECTION 11.12. Severability. In case any provision in this
------------
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.13. Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Company and each Guarantor will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purposes of this Indenture.
86
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
TKC ACQUISITION CORP.
as Issuer
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------
Title: Chairman and CEO
--------------------------
SUNTRUST BANK, ATLANTA,
as Trustee
By /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Group Vice President
--------------------------
By /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: __________________________
Title:__________________________
EXHIBIT A
FORM OF INITIAL GLOBAL NOTE
---------------------------
FACE OF INITIAL GLOBAL NOTE
---------------------------
TKC ACQUISITION CORP.
No. __
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY,
REQUIRED UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS
ISSUED) AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO TKC ACQUISITION CORP. OR A
SUCCESSOR THEREOF OR THE REGISTRAR FOR REGISTRATION OF TRANSFER
OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION
2.06 OF THE INDENTURE, DATED AS OF SEPTEMBER 26, 1997 BETWEEN TKC
ACQUISITION CORP., AS ISSUER AND SUNTRUST BANK, ATLANTA AS
TRUSTEE, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
GLOBAL NOTE
REPRESENTING 10 1/4% SENIOR NOTES DUE 2007
TKC Acquisition Corp., a Tennessee corporation, for value received, hereby
promises to pay to CEDE & CO., or its registered assigns, the principal sum
indicated on Schedule A hereof, on October 1, 2007.
Interest Payment Dates: April 1 and October 1, commencing April 1, 1998.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
A-2
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, TKC Acquisition Corp. has caused this Note to be duly
executed under its corporate seal.
TKC ACQUISITION CORP.
By:______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Attest:________________________
Dated:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
__________________________________
as Trustee, certifies that this is one of
the Notes referred to in the Indenture.
By:________________________________
Authorized Signatory
A-3
REVERSE SIDE OF INITIAL GLOBAL NOTE
TKC ACQUISITION CORP.
GLOBAL NOTE
REPRESENTING 10 1/4% SENIOR NOTES DUE 2007
1. Indenture.
---------
This Note is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "10 1/4% Senior Notes Due 2007"
(herein called the "Notes") limited in aggregate principal amount to
$100,000,000, issued under an indenture dated as of September 26, 1997 (as
amended or supplemented from time to time, the "Indenture") between the Company,
as issuer, and SunTrust Bank, Atlanta as trustee (the "Trustee," which term
includes any successor trustee under the Indenture). 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, as amended (15 U.S. Code (S)(S)
77aaa-77bbb). The Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and such Act for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantors, if any, the Trustee and each Holder and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The summary of the terms
of this Note contained herein does not purport to be complete and is qualified
by reference to the Indenture. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture shall control. All capitalized terms
used in this Note which are not defined herein shall have the meanings assigned
to them in the Indenture.
The Indenture restricts, among other things, the Company's ability to
incur additional indebtedness and issue preferred stock, pay dividends or make
certain other restricted payments, incur liens, sell stock of Subsidiaries,
apply net proceeds from certain asset sales, merge or consolidate with any other
person, sell, assign, transfer, lease, convey or otherwise dispose of
substantially all of the assets of the Company or enter into certain
transactions with affiliates.
2. Principal and Interest.
----------------------
TKC Acquisition Corp., a Tennessee corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay the principal amount set forth on
Schedule A of this Note to the Holder hereof on October 1, 2007.
The Company shall pay interest at a rate of 10 1/4% per annum, from
September 26, 1997 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually in arrears on
April 1 and October 1 of each year, commencing on April 1, 1998, in cash, to the
Holder hereof until the principal amount hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the Note in
exchange or substitution for which this Note was
A-4
issued) is registered at the close of business on the Record Date for interest
payable on such Interest Payment Date. The Record Date for any interest payment
is the close of business on March 15 or September 15, as the case may be,
whether or not a Business Day, immediately preceding the Interest Payment Date
on which such interest is payable. Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") shall forthwith cease to be payable to
the Holder on such Record Date and shall be paid as provided in Section 2.11 of
the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Note is exchanged in a Registered Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Exchange Note or Exchange Notes issued in exchange for this
Note, shall be paid on the first Interest Payment Date for such Exchange Note or
Exchange Notes to the Holder or Holders of such Exchange Note or Exchange Notes
on the first Record Date with respect to such Exchange Note or Exchange Notes.
If this Note is exchanged in a Registered Exchange Offer subsequent to the
Record Date for the first Interest Payment Date following such exchange but on
or prior to such Interest Payment Date, then any such accrued and unpaid
interest with respect to this Note and any accrued and unpaid interest on the
Exchange Note or Exchange Notes issued in exchange for this Note, through the
day before such Interest Payment Date, shall be paid on such Interest Payment
Date to the Holder of this Note on such Record Date.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium, Defaulted Interest and overdue Additional Interest
(without regard to any applicable grace period) at the interest rate borne on
this Note. The Company's obligation pursuant to the previous sentence shall
apply whether such overdue amount is due at its Stated Maturity, as a result of
the Company's obligations pursuant to Section 3.05, Section 4.07 or Section 4.08
of the Indenture, or otherwise.
3. Registration Rights, Additional Interest.
----------------------------------------
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated September 26, 1997, between the Company and
the Initial Purchaser (the "Registration Rights Agreement"), which agreement is
attached to the Indenture as Exhibit J thereto. Such benefits include the right
of the Holder to receive Additional Interest in the event of a failure on the
part of the Company to comply with certain registration covenants, as provided
in Section 4 of the Registration Rights Agreement.
A-5
4. Method of Payment.
-----------------
The Company, through the Paying Agent, shall pay interest on this Note
to the registered Holder of this Note, as provided above. The Holder must
surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest and Additional
Interest, if any, in money of the United States of America that at the time of
payment is legal tender for payment of all debts public and private. Principal,
premium, if any, and interest and Additional Interest, if any, shall be paid by
checks, mailed to the registered Holders at their registered addresses; provided
that all payments with respect to Notes the Holders of which have given wire
transfer instructions to the Company will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
5. Paying Agent and Registrar.
--------------------------
Initially, the Trustee will act as Paying Agent and Registrar under
the Indenture. The Company may, upon written notice to the Trustee, appoint and
change any Paying Agent or Registrar. The Company or any of its Affiliates may
act as Paying Agent or Registrar; provided that if the Company or such Affiliate
--------
is acting as Paying Agent, the Company or such Affiliate shall segregate all
funds held by it as Paying Agent and hold them in trust for the benefit of the
Holders or the Trustee.
6. Note Guarantees.
---------------
There are currently no Note Guarantees. This Note may become entitled
to the benefits of future Note Guarantees to be made by each future direct or
indirect Subsidiary of the Company (each singularly, a "Guarantor" and together,
the "Guarantors"). Each Guarantor will, irrevocably and unconditionally,
jointly and severally, guarantee on a senior basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, interest or Additional Interest, if
any, on the Notes, expenses, indemnification or otherwise. A Guarantor shall be
released from its Note Guarantee upon the terms and subject to the conditions
set forth in the Indenture.
7. Redemption.
----------
The Notes are not redeemable at the option of the Company prior to
April 1, 2002. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 calendar days' prior notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to the applicable Redemption
Date (subject to the right of each Holder of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period beginning April 1 of the years indicated below:
A-6
YEAR Percentage
---- ----------
2002 105.125%
2003 103.417%
2004 101.708%
2005 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to April 1, 2000, the
Company, at its option, may redeem up to 35% of the aggregate principal amount
of the Notes originally issued, in part, with the net proceeds of one or more
Public Equity Offerings made by the Company or of a capital contribution made by
the Parent to the common equity capital of the Company with the net proceeds of
one or more Public Equity Offerings made by the Parent, at a redemption price
equal to 110.25% of the aggregate principal amount thereof together with accrued
and unpaid interest and Additional Interest, if any, to the date of the
redemption payment; provided, however, that after such redemption the aggregate
-------- -------
principal amount of the Notes outstanding must equal at least 65% of the
aggregate principal amount of the Notes originally issued and provided, further,
-------- -------
that such redemption shall occur within 60 days of the date of closing of such
Public Equity Offering.
8. Notice of Redemption.
--------------------
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send, or cause to be sent, a notice of
redemption, by first-class mail, postage prepaid, to Holders of Notes to be
redeemed at the addresses of such Holders as they appear in the Note Register.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed on a pro rata basis; provided that
the Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000 (Notes in denominations of $1,000 or less may be redeemed only in whole).
If any Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
any accrued interest will be paid on such Interest Payment Date to the Holder of
the Note on such Record Date. If money in an amount sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the applicable
Redemption Date and certain other conditions are satisfied, interest on the
Notes or portions thereof to be redeemed on the applicable Redemption Date will
cease to accrue.
9. Repurchase at the Option of Holders upon Change of Control.
----------------------------------------------------------
Upon the occurrence of a Change of Control, each Holder shall have the
right in accordance with the terms hereof and the Indenture to require the
Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1,000, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest and Additional
Interest, if any, to the Change of Control Payment Date.
A-7
Within 30 calendar days after the date of any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder. The Holder of this
Note may elect to have this Note or a portion hereof in an authorized
denomination purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below and tendering this Note pursuant to the Change
of Control Offer. Unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest from and after the Change of Control Payment Date.
10. Repurchase at the Option of Holders upon Asset Sale.
---------------------------------------------------
If at any time the Company or any Subsidiary engages in any Asset
Sale, as a result of which the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall, within 30 calendar days of the date the amount of
Excess Proceeds exceeds $5.0 million, use the then-existing Excess Proceeds to
make an offer to purchase from all Holders of Notes, on a pro rata basis, Notes
in an aggregate principal amount equal in amount to the then-existing Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon and Additional
Interest, if any, to the Asset Sale Purchase Date. Upon completion of an Asset
Sale Offer (including payment of the Asset Sale Purchase Price for accepted
Notes), any surplus Excess Proceeds that were the subject of such offer shall
cease to be Excess Proceeds, and the Company may then use such amounts for
general corporate purposes.
Within 30 calendar days of the date the amount of Excess Proceeds
exceeds $5.0 million, the Company shall send, or cause to be sent, by first-
class mail, postage prepaid, a notice regarding the Asset Sale Offer to each
Holder. The Holder of this Note may elect to have this Note or a portion hereof
in an authorized denomination purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Asset Sale Offer. Unless the Company defaults in the payment of the Asset
Sale Purchase Price with respect thereto, all Notes or portions thereof selected
for payment pursuant to the Asset Sale Offer will cease to accrue interest from
and after the Asset Sale Purchase Date.
11. The Global Note.
---------------
So long as this Global Note is registered in the name of the
Depository or its nominee, members of, or participants in, the Depository
("Agent Members") shall have no rights under the Indenture with respect to this
Global Note held on their behalf by the Depository or the Trustee as its
custodian, and the Depository may be treated by the Company, the Guarantors, if
any, the Trustee and any agent of the Company, the Guarantors, if any, or the
Trustee as the absolute owner of this Global Note for all purposes.
Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the
Guarantors, if any, 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 Depository or (ii) impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder.
A-8
The Holder of this Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in this Global Note through Agent Members, to take any action which a
Holder is entitled to take under the Indenture or the Notes.
Whenever, as a result of optional redemption by the Company, a Change
of Control Offer, an Asset Sale Offer, a Registered Exchange Offer or an
exchange for Certificated Notes, this Global Note is redeemed, repurchased or
exchanged in part, this Global Note shall be surrendered by the Holder thereof
to the Trustee who shall cause an adjustment to be made to Schedule A hereof so
that the principal amount of this Global Note will be equal to the portion not
redeemed, repurchased or exchanged and shall thereafter return this Global Note
to such Holder; provided that this Global Note shall be in a principal amount of
--------
$1,000 or an integral multiple of $1,000.
12. The Registered Exchange Offer.
-----------------------------
Any Initial Notes represented by this Global Note that are presented
to the Registrar for exchange pursuant to the Registered Exchange Offer (as
defined in the Registration Rights Agreement) shall be exchanged for a Global
Note representing Exchange Notess of equal principal amount upon surrender of
this Global Note to the Registrar in accordance with the terms of the Registered
Exchange Offer and the Indenture.
13. Transfer and Exchange.
---------------------
The transfer of this Note is subject to certain restrictions,
including those to which reference is made in the Private Placement Legend. A
Holder may transfer or exchange Notes as provided in the Indenture and subject
to certain limitations therein set forth. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes, fees and expenses required by law or permitted by the
Indenture.
14. Denominations.
-------------
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
15. Discharge and Defeasance.
------------------------
Subject to certain conditions, the Company may, at any time, terminate
some or all of the obligations of the Company and each Guarantor, if any, under
the Notes, each Note Guarantee, if any, and the Indenture if the Company
irrevocably deposits in trust with the Trustee cash or U.S. Government
Obligations for the payment of principal, premium, if any, interest and
Additional Interest, if any, on the Notes to redemption or maturity, as the case
may be.
16. Amendment, Waiver.
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal
A-9
amount of the outstanding Notes (which consent may, but need not, be given in
connection with any tender offer or exchange offer for the Notes) and (ii) any
Default and its consequences 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 and the Trustee may amend the Indenture or the Notes (i)
to evidence the succession of another Person to the Company and the assumption
by such successor of the covenants of the Company under the Indenture and
contained in the Notes; (ii) to add to the covenants of the Company, for the
benefit of the Holders of all of the Notes, or to surrender any right or power
conferred on the Company under the Indenture; (iii) to add any additional Events
of Default; (iv) to provide for uncertificated Notes in addition to or in place
of Certificated Notes; (v) to evidence and provide for the acceptance of
appointment under the Indenture of a successor Trustee; (vi) to secure the
Notes; (vii) to cure any ambiguity in the Indenture, or to correct or supplement
any provision in the Indenture which may be inconsistent with any other
provision therein or to add any other provisions with respect to matters or
questions arising under the Indenture, provided that such actions shall not
adversely affect the interests of the Holders of Notes in any material respect;
(viii) to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act; or
(ix) to evidence the agreement or acknowledgment of a Subsidiary that it is a
Guarantor for all purposes under the Indenture (including, without limitation,
Article X thereof).
17. Defaults and Remedies.
---------------------
Under the Indenture, Events of Default include: (i) a default for 30
days in the payment when due of interest on, or Additional Interest with respect
to, the Notes; (ii) default in payment when due of the principal of or premium,
if any, on the Notes; (iii) failure by the Company to observe or perform certain
covenants, conditions, agreements or other provisions of the Indenture or this
Note (and, in the case of certain covenants, agreements or other provisions,
such failure has continued for 60 calendar days after written notice by the
Trustee or the Holders of at least 25% in principal amount of the Notes); (iv)
default in the payment of Indebtedness of the Company or any of its Subsidiaries
at its final maturity or acceleration of such Indebtedness in an amount in
excess of $5.0 million in the aggregate; (v) certain events of bankruptcy or
insolvency with respect to the Company or any of its Subsidiaries; (vi) certain
undischarged judgments in excess of $5.0 million in the aggregate; or (vii) the
Note Guarantee of any Guarantor being held in any judicial proceeding to be
unenforceable or invalid or ceasing for any reason to be in full force and
effect (other than in accordance with the terms of the Indenture) or any
Guarantor or any Person acting on behalf of any Guarantor denying or
disaffirming the Note Guarantee of such Guarantor.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes, subject to certain
limitations, may declare all the Notes to be immediately due and payable.
Certain events of bankruptcy or insolvency shall result in the Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives
A-10
reasonable indemnity or security. Subject to certain limitations, Holders of a
majority in principal amount of the Notes may direct the Trustee in its exercise
of any trust or power under the Indenture. The Holders of a majority in
principal amount of the then outstanding Notes, by written notice to the Trustee
and the Company, may rescind any declaration of 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, interest, premium or Additional Interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
18. Individual Rights of Trustee.
----------------------------
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Guarantors, if any, or its or their Affiliates with the same
rights it would have if it were not Trustee, Paying Agent or Registrar, as the
case may be, under the Indenture.
19. No Recourse Against Certain Others.
----------------------------------
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any such Guarantor under the Notes, the Note Guarantees, if
any, or the Indenture or for any claim based on, in respect of or by reason of,
such obligations or their creation, solely by reason of its status as a
director, officer, employee, incorporator or stockholder of the Company or any
such Guarantor. By accepting a Note, each Holder waives and releases all such
liability (but only such liability) as part of the consideration for issuance of
such Note to such Holder.
20. Authentication.
--------------
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
21. 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).
22. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. 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.
A-11
23. Governing Law.
-------------
THE INDENTURE, ANY NOTE GUARANTEES AND THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note. Requests may be made to:
Port Royal Holdings, Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Secretary
A-12
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $____________.
The following decreases/increase in the principal amount in denominations of
$1,000 or integral multiples thereof at maturity of this Note have been made:
Total Principal
Amount at
Decrease in Increase in Maturity Notation
Date of Principal Principal Following such Made by
Decrease/ Amount at Amount at Decrease/ or on Behalf of
Increase Maturity Maturity Increase Trustee
--------- -------- -------- -------- -------
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
_____________ _____________ _____________ _____________ _____________
A-13
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
-----------------------------
-----------------------------
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint _________________________________ Attorney to
transfer this Note on the Security Register, with full power of substitution.
Dated: ________________
______________________________ __________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name
as written upon the face of this Note in every particular, without alteration or
any change whatsoever.
A-14
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
[_] In connection with the Change of Control Offer made pursuant to Section
4.07 of the Indenture, the undersigned hereby elects to have
[_] the entire principal amount
[_] $_______________ ($1,000 in principal amount or an integral multiple
thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or __________________________ an amount in cash
equal to 101% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Change of Control Payment Date.
[_] In connection with the Asset Sale Offer made pursuant to Section 4.08 of
the Indenture, the undersigned hereby elects to have
[_] the entire principal amount
[_] $________________ ($1,000 in principal amount or an integral multiple
thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ____________________________ an amount in cash
equal to 100% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Asset Sale Purchase Date.
Dated: ________________
_____________________________ __________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
A-15
EXHIBIT B
FORM OF INITIAL CERTIFICATED NOTE
---------------------------------
FACE OF INITIAL CERTIFICATED NOTE
---------------------------------
TKC ACQUISITION CORP.
No.____
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT'), AND THIS NOTE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY,
REQUIRED UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS
ISSUED) AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
10 1/4% SENIOR NOTE DUE 2007
TKC Acquisition Corp., a Tennessee corporation, for value received,
hereby promises to pay to __________, or its registered assigns, the principal
amount of ________, on October 1, 2007.
Interest Payment Dates: April 1 and October 1, commencing April 1,
1998.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, TKC Acquisition Corp. has caused this Note to be
duly executed under its corporate seal.
TKC ACQUISITION CORP.
By:____________________________
Name:
Title:
Attest:________________
Dated:_________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
_____________________________________________________
as Trustee, certifies that this
is one of the Notes referred to in the Indenture.
By:________________________
Authorized Signatory
B-2
REVERSE SIDE OF INITIAL CERTIFICATED NOTE
TKC ACQUISITION CORP.
10 1/4% SENIOR NOTE DUE 2007
1. Indenture.
---------
This Note is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "10 1/4% Senior Notes Due 2007"
(herein called the "Notes") limited in aggregate principal amount to
$100,000,000, issued under an indenture dated as of September 26, 1997 (as
amended or supplemented from time to time, the "Indenture") between the Company,
as issuer, and SunTrust Bank, Atlanta, as trustee (the "Trustee," which term
includes any successor trustee under the Indenture). 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, as amended (15 U.S. Code (S)(S)
77aaa-77bbb). The Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and such Act for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantors, if any, the Trustee and each Holder and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The summary of the terms
of this Note contained herein does not purport to be complete and is qualified
by reference to the Indenture. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control. All capitalized terms used
in this Note which are not defined herein shall have the meanings assigned to
them in the Indenture.
The Indenture restricts, among other things, the Company's ability to
incur additional indebtedness and issue preferred stock, pay dividends or make
certain other restricted payments, incur liens, sell stock of Subsidiaries,
apply net proceeds from certain asset sales, merge or consolidate with any other
person, sell, assign, transfer, lease, convey or otherwise dispose of
substantially all of the assets of the Company and enter into certain
transactions with affiliates.
2. Principal and Interest.
----------------------
TKC Acquisition Corp., a Tennessee corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay the principal amount of ______ to
the Holder hereof on October 1, 2007.
The Company shall pay interest at a rate of 10 1/4% per annum, from
September 26, 1997 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually in arrears on
April 1 and October 1 of each year, commencing on April 1, 1998, in cash, to the
Holder hereof until the principal amount hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the Note in
exchange or substitution for which this Note was issued) is registered at the
close of business on the Record Date for interest payable on such
B-3
Interest Payment Date. The Record Date for any interest payment is the close of
business on March 15 or September 15, as the case may be, whether or not a
Business Day, immediately preceding the Interest Payment Date on which such
interest is payable. Any such interest not so punctually paid or duly provided
for ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
such Record Date and shall be paid as provided in Section 2.11 of the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Note is exchanged in a Registered Exchange Offer, prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Exchange Note or Exchange Notes issued in exchange for this
Note, shall be paid on the first Interest Payment Date for such Exchange Note or
Exchange Notes to the Holder or Holders of such Exchange Note or Exchange Notes
on the first Record Date with respect to such Exchange Note or Exchange Notes.
If this Note is exchanged in a Registered Exchange Offer subsequent to the
Record Date for the first Interest Payment Date following such exchange but on
or prior to such Interest Payment Date, then any such accrued and unpaid
interest with respect to this Note and any accrued and unpaid interest on the
Exchange Note or Exchange Notes issued in exchange for this Note, through the
day before such Interest Payment Date, shall be paid on such Interest Payment
Date to the Holder of this Note on such Record Date.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium, Defaulted Interest and overdue Additional Interest
(without regard to any applicable grace period) at the interest rate borne on
this Note. The Company's obligation pursuant to the previous sentence shall
apply whether such overdue amount is due at its Stated Maturity, as a result of
the Company's obligations pursuant to Section 3.05, Section 4.07 or Section 4.08
of the Indenture, or otherwise.
3. Registration Rights, Additional Interest.
----------------------------------------
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated September 26, 1997, between the Company and
the Initial Purchaser (the "Registration Rights Agreement"), which agreement is
attached to the Indenture as Exhibit J thereto. Such benefits include the right
of the Holder to receive Additional Interest in the event of a failure on the
part of the Company to comply with certain registration covenants, as provided
in Section 4 of the Registration Rights Agreement.
B-4
4. Method of Payment.
-----------------
The Company, through the Paying Agent, shall pay interest on this Note
to the registered Holder of this Note, as provided above. The Holder must
surrender this Note to a Paying Agent to collect principal payments. The Company
will pay principal, premium, if any, and interest and Additional Interest, if
any, in money of the United States of America that at the time of payment is
legal tender for payment of all debts public and private. Principal, premium, if
any, and interest and Additional Interest, if any, shall be paid by check,
mailed to the registered Holders at their registered addresses; provided that
all payments with respect to Notes that the Holders of which have given wire
transfer instructions to the Company, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
5. Paying Agent and Registrar.
--------------------------
Initially, the Trustee will act as Paying Agent and Registrar under
the Indenture. The Company may, upon written notice to the Trustee, appoint and
change any Paying Agent or Registrar. The Company or any of its Affiliates may
act as Paying Agent or Registrar; provided that if the Company or such Affiliate
--------
is acting as Paying Agent, the Company or such Affiliate shall segregate all
funds held by it as Paying Agent and hold them in trust for the benefit of the
Holders or the Trustee.
6. Note Guarantees.
---------------
There are currently no Note Guarantees. This Note may become entitled
to the benefits of future Note Guarantees to be made by each future direct or
indirect Subsidiary of the Company (each singularly, a "Guarantor" and together,
the "Guarantors"). Each Guarantor will, irrevocably and unconditionally,
jointly and severally, guarantee on a senior basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, interest or Additional Interest, if
any, on the Notes, expenses, indemnification or otherwise. A Guarantor shall be
released from its Note Guarantee upon the terms and subject to the conditions
set forth in the Indenture.
B-5
7. Redemption.
----------
The Notes are not redeemable at the option of the Company prior to
April 1, 2002. Thereafter, the Notes will be subject to redemption at the option
of the Company, in whole or in part, upon not less than 30 nor more than 60
calendar days' prior notice, at the redemption prices (expressed as percentages
of principal amount) set forth below, plus accrued and unpaid interest thereon,
and Additional Interest, if any, to the applicable Redemption Date (subject to
the right of each Holder of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date), if redeemed during the
twelve-month period beginning April 1 of the years indicated below:
YEAR Percentage
---- ----------
2002 105.125%
2003 103.417%
2004 101.708%
2005 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to April 1, 2000, the
Company, at its option, may redeem up to 35% of the aggregate principal amount
of the Notes originally issued, in part, with the net proceeds of one or more
Public Equity Offerings made by the Company or of a capital contribution made by
the Parent to the common equity capital of the Company with the net proceeds of
one or more Public Equity Offerings made by the Parent, at a redemption price
equal to 110.25% of the aggregate principal amount thereof together with accrued
and unpaid interest and Additional Interest, if any, to the date of the
redemption payment; provided, however, that after such redemption, the aggregate
-------- -------
principal amount of the Notes outstanding must equal at least 65% of the
aggregate principal amount of the Notes originally issued and provided, further,
-------- -------
that such redemption shall occur within 60 days of the date of closing such
Public Equity Offering.
8. Notice of Redemption.
--------------------
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send, or cause to be sent, a notice of
redemption, by first-class mail, postage prepaid, to Holders of Notes to be
redeemed at the addresses of such Holders as they appear in the Note Register.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed on a pro rata basis; provided that
the Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000 (Notes in denominations of $1,000 or less may be redeemed only in whole).
If any Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
any accrued interest will be paid on such Interest Payment Date to the Holder of
the Note on such Record Date. If money in an amount sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before
B-6
the applicable Redemption Date and certain other conditions are satisfied,
interest on the Notes or portions thereof to be redeemed on the applicable
Redemption Date will cease to accrue.
9. Repurchase at the Option of Holders upon Change of Control.
----------------------------------------------------------
Upon the occurrence of a Change of Control, each Holder shall have the
right in accordance with the terms hereof and the Indenture to require the
Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1,000, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest and Additional
Interest, if any, to the Change of Control Payment Date.
Within 30 calendar days after the date of any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder. The Holder of this
Note may elect to have this Note or a portion hereof in an authorized
denomination purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below and tendering this Note pursuant to the Change
of Control Offer. Unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest from and after the Change of Control Payment Date.
10. Repurchase at the Option of Holders upon Asset Sale.
---------------------------------------------------
If at any time the Company or any Subsidiary engages in any Asset
Sale, as a result of which the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall, within 30 calendar days of the date the amount of
Excess Proceeds exceeds $5.0 million, use the then-existing Excess Proceeds to
make an offer to purchase from all Holders of Notes, on a pro rata basis, Notes
in an aggregate principal amount equal in amount to the then-existing Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon and Additional
Interest, if any, to the Asset Sale Purchase Date. Upon completion of an Asset
Sale Offer (including payment of the Asset Sale Purchase Price for accepted
Notes), any surplus Excess Proceeds that were the subject of such offer shall
cease to be Excess Proceeds, and the Company may then use such amounts for
general corporate purposes. Within 30 calendar days of the date the amount of
Excess Proceeds exceeds $5.0 million, the Company shall send, or cause to be
sent, by first-class mail, postage prepaid, a notice regarding the Asset Sale
Offer to each Holder. The Holder of this Note may elect to have this Note or a
portion hereof in an authorized denomination purchased by completing the form
entitled "Option of Holder to Elect Purchase" appearing below and tendering this
Note pursuant to the Asset Sale Offer. Unless the Company defaults in the
payment of the Asset Sale Purchase Price with respect thereto, all Notes or
portions thereof selected for payment pursuant to the Asset Sale Offer will
cease to accrue interest from and after the Asset Sale Purchase Date.
11. The Registered Exchange Offer.
-----------------------------
B-7
Any Initial Notes (including this Note) that are presented to the
Registrar for exchange pursuant to the Registered Exchange Offer (as defined in
the Registration Rights Agreement) shall be exchanged for Exchange Notes of
equal principal amount upon surrender of such Notes to the Registrar in
accordance with the terms of the Registered Exchange Offer and the Indenture.
12. Transfer and Exchange.
---------------------
The transfer of this Note is subject to certain restrictions,
including those to which reference is made in the Private Placement Legend. A
Holder may transfer or exchange Notes as provided in the Indenture and subject
to certain limitations therein set forth. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes, fees and expenses required by law or permitted by the
Indenture. The Registrar need not register the transfer or exchange of
Certificated Notes or portions thereof selected for redemption (except, in the
case of a Certificated Note to be redeemed in part, the portion of such
Certificated Note not to be redeemed) or any Certificated Notes for a period of
15 calendar days before a selection of Notes to be redeemed.
13. Denominations.
-------------
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount;
provided that Initial Certificated Notes originally purchased by or transferred
to Institutional Accredited Investors shall be subject to a minimum denomination
of $250,000.
14. Discharge and Defeasance.
------------------------
Subject to certain conditions, the Company may, at any time, terminate
some or all of the obligations of the Company and each Guarantor, if any, under
the Notes, each Note Guarantee, if any, and the Indenture if the Company
irrevocably deposits in trust with the Trustee cash or U.S. Government
Obligations for the payment of principal, premium, if any, interest and
Additional Interest, if any, on the Notes to redemption or maturity, as the case
may be.
15. Amendment;Waiver.
----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the outstanding Notes (which consent
may, but need not, be given in connection with any tender offer or exchange
offer for the Notes) and (ii) any Default and its consequences 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 and the Trustee may
amend the Indenture or the Notes (i) to evidence the succession of another
Person to the Company and the assumption by such successor of the covenants of
the Company under the Indenture and contained in the Notes; (ii) to add to the
covenants of the Company, for the benefit of the Holders of all of the Notes, or
to surrender any right or power conferred on the Company under the Indenture;
(iii) to add any additional
B-8
Events of Default; (iv) to provide for uncertificated Notes in addition to or in
place of Certificated Notes; (v) to evidence and provide for the acceptance of
appointment under the Indenture of a successor Trustee; (vi) to secure the
Notes; (vii) to cure any ambiguity in the Indenture, or to correct or supplement
any provision in the Indenture which may be inconsistent with any other
provision therein or to add any other provisions with respect to matters or
questions arising under the Indenture, provided that such actions shall not
adversely affect the interests of the Holders of Notes in any material respect;
(viii) to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act; or
(ix) to evidence the agreement or acknowledgment of a Subsidiary that it is a
Guarantor for all purposes under the Indenture (including, without limitation,
Article X thereof).
16. Defaults and Remedies.
---------------------
Under the Indenture, Events of Default include: (i) a default for 30
days in the payment when due of interest on, or Additional Interest with respect
to, the Notes; (ii) default in payment when due of the principal of or premium,
if any, on the Notes; (iii) failure by the Company to observe or perform certain
covenants, conditions, agreements or other provisions of the Indenture or this
Note (and, in the case of certain covenants, agreements or other provisions,
such failure has continued for 60 calendar days after written notice by the
Trustee or the Holders of at least 25% in principal amount of the Notes); (iv)
default in the payment of Indebtedness of the Company or any of its Subsidiaries
at its final maturity or acceleration of such Indebtedness in an amount in
excess of $5.0 million in the aggregate; (v) certain events of bankruptcy or
insolvency with respect to the Company or any of its Subsidiaries; (vi) certain
undischarged judgments in excess of $5.0 million in the aggregate; or (vii) the
Note Guarantee of any Guarantor being held in any judicial proceeding to be
unenforceable or invalid or ceasing for any reason to be in full force and
effect (other than in accordance with the terms of the Indenture) or any
Guarantor or any Person acting on behalf of any Guarantor denying or
disaffirming the Note Guarantee of such Guarantor.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes, subject to certain
limitations, may declare all the Notes to be immediately due and payable.
Certain events of bankruptcy or insolvency shall result in the Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power under the Indenture.
The Holders of a majority in principal amount of the then outstanding Notes, by
written notice to the Trustee and the Company, may rescind any declaration of
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, interest, premium or Additional Interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
B-9
17. Individual Rights of Trustee.
----------------------------
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Guarantors, if any, or its or their Affiliates with the same
rights it would have if it were not Trustee, Paying Agent or Registrar, as the
case may be, under the Indenture.
18. No Recourse Against Certain Others.
----------------------------------
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any such Guarantor under the Notes, the Note Guarantees, if
any, or the Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation, solely by reason of its status as a
director, officer, employee, incorporator or stockholder of the Company or any
such Guarantor. By accepting a Note, each Holder waives and releases all such
liability (but only such liability) as part of the consideration for issuance of
such Note to such Holder.
19. Authentication.
--------------
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
20. 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).
21. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. 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.
B-10
22. Governing Law.
-------------
THE INDENTURE, ANY NOTE GUARANTEES AND THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note. Requests may be made to:
Port Royal Holdings, Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Secretary
B-11
ASSIGNMENT
(To be executed by the registered Holder
if such Holder decsires to transfer this Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
-----------------------------------
-----------------------------------
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint _________________________________ Attorney to
transfer this Note on the Security Register, with full power of substitution.
Dated: ________________
_________________________ _________________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name
as written upon the face of this Note in every particular, without alteration or
any change whatsoever.
B-12
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
[_] In connection with the Change of Control Offer made pursuant to
Section 4.07 of the Indenture, the undersigned hereby elects to
have
[_] the entire principal amount
[_] $_______________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or __________________________ an amount in cash
equal to 101% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Change of Control Payment Date.
[_] In connection with the Asset Sale Offer made pursuant to Section
4.08 of the Indenture,the undersigned hereby elects to have
[_] the entire principal amount
[_] $________________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ____________________________ an amount in cash
equal to 100% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Asset Sale Purchase Date.
Dated: ________________
________________________ ________________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
B-13
EXHIBIT C
FORM OF EXCHANGE GLOBAL NOTE
----------------------------
FACE OF EXCHANGE GLOBAL NOTE
----------------------------
TKC ACQUISITION CORP.
No.___
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO TKC ACQUISITION CORP. OR A SUCCESSOR THEREOF OR THE REGISTRAR
FOR REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN
PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE.
GLOBAL NOTE
REPRESENTING 10 1/4% SENIOR NOTES DUE 2006
TKC Acquisition Corp., a Tennessee corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum indicated on Schedule A hereof, on October 1, 2007.
Interest Payment Dates: April 1 and October 1, commencing April 1,
1997.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, TKC Acquisition Corp. has caused this Note to be
duly executed under its corporate seal.
TKC ACQUISITION CORP.
By:___________________________________
Name:
Title:
Attest:__________________
Dated:___________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
____________________________________
as Trustee, certifies that this
is one of the Notes referred to
in the Indenture.
By:_________________________________
Authorized Signatory
C-2
REVERSE SIDE OF EXCHANGE GLOBAL NOTE
TKC ACQUISITION CORP.
GLOBAL NOTE
REPRESENTING 10 1/4% SENIOR NOTES DUE 2007
1. Indenture.
---------
This Note is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "10 1/4% Senior Notes Due 2007"
(herein called the "Notes") limited in aggregate principal amount to
$100,000,000, issued under an indenture dated as of September 26, 1997 (as
amended or supplemented from time to time, the "Indenture") between the Company,
as issuer, and SunTrust Bank, Atlanta, as trustee (the "Trustee," which term
includes any successor trustee under the Indenture). 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, as amended (15 U.S. Code (S)(S)
77aaa-77bbb). The Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and such Act for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantors, if any, the Trustee and each Holder and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The summary of the terms
of this Note contained herein does not purport to be complete and is qualified
by reference to the Indenture. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture shall control. All capitalized terms
used in this Note which are not defined herein shall have the meanings assigned
to them in the Indenture.
The Indenture restricts, among other things, the Company's ability to
incur additional indebtedness and issue preferred stock, pay dividends or make
certain other restricted payments, incur liens, sell stock of Subsidiaries,
apply net proceeds from certain asset sales, merge or consolidate with any other
person, sell, assign, transfer, lease, convey or otherwise dispose of
substantially all of the assets of the Company and enter into certain
transactions with affiliates.
Principal and Interest.
2. ----------------------
TKC Acquisition Corp., a Tennessee corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay the principal amount set forth on
Schedule A of this Note to the Holder hereof on October 1, 2007.
The Company shall pay interest at a rate of 10 1/4% per annum, from
September 26, 1997 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually in arrears on
April 1 and October 1 of each year, commencing on April 1, 1998, in cash, to the
Holder hereof until the principal amount hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the Note in
exchange or substitution for which this Note was
C-3
issued) is registered at the close of business on the Record Date for interest
payable on such Interest Payment Date. The Record Date for any interest payment
is the close of business on March 15 or September 15, as the case may be,
whether or not a Business Day, immediately preceding the Interest Payment Date
on which such interest is payable. Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") shall forthwith cease to be payable to
the Holder on such Record Date and shall be paid as provided in Section 2.11 of
the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Note is issued pursuant to a Registered Exchange Offer, on or
prior to the Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on the equivalent principal
amount of the Initial Note in exchange for which this Note was issued, up to but
not including the date of issuance of this Note, shall be paid on the first
Interest Payment Date for this Note to the Holder of this Note on the first
Record Date with respect to this Note. If this Note is issued pursuant to a
Registered Exchange Offer, subsequent to the Record Date for the first Interest
Payment Date following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to the equivalent
principal amount of the Initial Note in exchange for which this Note was issued
and any accrued and unpaid interest on this Note through the day before such
Interest Payment Date shall be paid on such Interest Payment Date to the Holder
of such Initial Note on such Record Date.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium, Defaulted Interest and overdue Additional Interest
(without regard to any applicable grace period) at the interest rate borne on
this Note. The Company's obligation pursuant to the previous sentence shall
apply whether such overdue amount is due at its Stated Maturity, as a result of
the Company's obligations pursuant to Section 3.05, Section 4.07 or Section 4.08
of the Indenture, or otherwise.
Method of Payment.
3. -----------------
The Company, through the Paying Agent, shall pay interest on this Note
to the registered Holder of this Note, as provided above. The Holder must
surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest and Additional
Interest, if any, in money of the United States of America that at the time of
payment is legal tender for payment of all debts public and private. Principal,
premium, if any, and interest and Additional Interest, if any, shall be paid by
checks, mailed to the registered Holders at their registered addresses; provided
that all payments with respect to Notes that the Holders of which have given
wire transfer instructions to the Company, will be required to be
C-4
made by wire transfer of immediately available funds to the accounts specified
by the Holders thereof.
Paying Agent and Registrar.
4. --------------------------
Initially, the Trustee will act as Paying Agent and Registrar under
the Indenture. The Company may, upon written notice to the Trustee, appoint and
change any Paying Agent or Registrar. The Company or any of its Affiliates may
act as Paying Agent or Registrar; provided that if the Company or such Affiliate
--------
is acting as Paying Agent, the Company or such Affiliate shall segregate all
funds held by it as Paying Agent and hold them in trust for the benefit of the
Holders or the Trustee.
5. Note Guarantees.
---------------
There are currently no Note Guarantees. This Note may become entitled
to the benefits of future Note Guarantees to be made by each future direct or
indirect Subsidiary of the Company (each singularly, a "Guarantor" and together,
the "Guarantors"). Each Guarantor will, irrevocably and unconditionally,
jointly and severally, guarantee on a senior basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, interest or Additional Interest, if
any, on the Notes, expenses, indemnification or otherwise. A Guarantor shall be
released from its Note Guarantee upon the terms and subject to the conditions
set forth in the Indenture.
Redemption.
6. ----------
The Notes are not redeemable at the option of the Company prior to
April 1, 2002. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 calendar days' prior notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to the applicable Redemption
Date (subject to the right of each Holder of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period beginning April 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2002 105.125%
2003 103.417%
2004 101.708%
2005 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to April 1, 2000, the
Company, at its option, may redeem up to 35% of the aggregate principal amount
of the Notes originally issued, in part, with the net proceeds of one or more
Public Equity Offerings made by the Company or of a capital contribution made by
the Parent to the common equity capital of the
C-5
Company with the net proceeds of one or more Public Equity Offerings made by the
Parent , at a redemption price equal to 110.25% of the aggregate principal
amount thereof together with accrued and unpaid interest and Additional
Interest, if any, to the date of the redemption payment; provided, however, that
-------- -------
after such redemption, the aggregate principal amount of the Notes outstanding
must equal at least 65% of the aggregate principal amount of the Notes
originally issued and provided, further, that such redemption shall occur within
-------- -------
60 days of the date of closing such Public Equity Offering.
7. Notice of Redemption.
--------------------
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send, or cause to be sent, a notice of
redemption, by first-class mail, postage prepaid, to Holders of Notes to be
redeemed at the addresses of such Holders as they appear in the Note Register.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed on a pro rata basis; provided that
the Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000 (Notes in denominations of $1,000 or less may be redeemed only in whole).
If any Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
any accrued interest will be paid on such Interest Payment Date to the Holder of
the Note on such Record Date. If money in an amount sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the applicable
Redemption Date and certain other conditions are satisfied, interest on the
Notes or portions thereof to be redeemed on the applicable Redemption Date will
cease to accrue.
8. Repurchase at the Option of Holders upon Change of Control.
----------------------------------------------------------
Upon the occurrence of a Change of Control, each Holder shall have the
right in accordance with the terms hereof and the Indenture to require the
Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1,000, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest and Additional
Interest, if any, to the Change of Control Payment Date.
Within 30 calendar days after the date of any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder. The Holder of this
Note may elect to have this Note or a portion hereof in an authorized
denomination purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below and tendering this Note pursuant to the Change
of Control Offer. Unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest from and after the Change of Control Payment Date.
X-0
0. Xxxxxxxxxx at the Option of Holders upon Asset Sale.
---------------------------------------------------
If at any time the Company or any Subsidiary engages in any Asset
Sale, as a result of which the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall, within 30 calendar days of the date the amount of
Excess Proceeds exceeds $5.0 million, use the then-existing Excess Proceeds to
make an offer to purchase from all Holders of Notes, on a pro rata basis, Notes
in an aggregate principal amount equal in amount to the then-existing Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon and Additional
Interest, if any, to the Asset Sale Purchase Date. Upon completion of an Asset
Sale Offer (including payment of the Asset Sale Purchase Price for accepted
Notes), any surplus Excess Proceeds that were the subject of such offer shall
cease to be Excess Proceeds, and the Company may then use such amounts for
general corporate purposes.
Within 30 calendar days of the date the amount of Excess Proceeds
exceeds $5.0 million, the Company shall send, or cause to be sent, by first-
class mail, postage prepaid, a notice regarding the Asset Sale Offer to each
Holder. The Holder of this Note may elect to have this Note or a portion hereof
in an authorized denomination purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Asset Sale Offer. Unless the Company defaults in the payment of the Asset
Sale Purchase Price with respect thereto, all Notes or portions thereof selected
for payment pursuant to the Asset Sale Offer will cease to accrue interest from
and after the Asset Sale Purchase Date.
10. The Global Note.
---------------
So long as this Global Note is registered in the name of the
Depository or its nominee, members of, or participants in, the Depository
("Agent Members") shall have no rights under the Indenture with respect to this
Global Note held on their behalf by the Depository or the Trustee as its
custodian, and the Depository may be treated by the Company, the Guarantors, if
any, the Trustee and any agent of the Company, the Guarantors, if any, or the
Trustee as the absolute owner of this Global Note for all purposes.
Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the
Guarantors, if any, 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 Depository or (ii) impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder.
The Holder of this Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in this Global Note through Agent Members, to take any action which a
Holder is entitled to take under the Indenture or the Notes.
Whenever, as a result of optional redemption by the Company, a Change
of Control Offer, an Asset Sale Offer or an exchange for Certificated Notes,
this Global Note is redeemed, repurchased or exchanged in part, this Global Note
shall be surrendered by the Holder thereof to the Trustee who shall cause an
adjustment to be made to Schedule A hereof so that the principal amount of this
Global Note will be equal to the portion not redeemed, repurchased or
C-7
exchanged and shall thereafter return this Global Note to such Holder; provided
--------
that this Global Note shall be in a principal amount of $1,000 or an integral
multiple of $1,000.
11. Transfer and Exchange.
---------------------
A Holder may transfer or exchange Notes as provided in the Indenture
and subject to certain limitations therein set forth. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes, fees and expenses required by law or permitted
by the Indenture.
12. Denominations.
-------------
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
13. Discharge and Defeasance.
------------------------
Subject to certain conditions, the Company may, at any time, terminate
some or all of the obligations of the Company and each Guarantor, if any, under
the Notes, each Note Guarantee, if any, and the Indenture if the Company
irrevocably deposits in trust with the Trustee cash or U.S. Government
Obligations for the payment of principal, premium, if any, interest and
Additional Interest, if any, on the Notes to redemption or maturity, as the case
may be.
14. Amendment, Waiver.
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the outstanding Notes (which consent
may, but need not, be given in connection with any tender offer or exchange
offer for the Notes) and (ii) any Default and its consequences 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 and the Trustee may
amend the Indenture or the Notes (i) to evidence the succession of another
Person to the Company and the assumption by such successor of the covenants of
the Company under the Indenture and contained in the Notes; (ii) to add to the
covenants of the Company, for the benefit of the Holders of all of the Notes, or
to surrender any right or power conferred on the Company under the Indenture;
(iii) to add any additional Events of Default; (iv) to provide for
uncertificated Notes in addition to or in place of Certificated Notes; (v) to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee; (vi) to secure the Notes; (vii) to cure any ambiguity in the
Indenture, or to correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or to add any other provisions
with respect to matters or questions arising under the Indenture, provided that
such actions shall not adversely affect the interests of the Holders of Notes in
any material respect; (viii) to comply with the requirements of the Commission
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act; or (ix) to evidence the agreement or acknowledgment of a
Subsidiary that it is a Guarantor for all purposes under the Indenture
(including, without limitation, Article X thereof).
C-8
15. Defaults and Remedies.
---------------------
Under the Indenture, Events of Default include: (i) a default for 30
days in the payment when due of interest on, or Additional Interest with respect
to, the Notes; (ii) default in payment when due of the principal of or premium,
if any, on the Notes; (iii) failure by the Company to observe or perform certain
covenants, conditions, agreements or other provisions of the Indenture or this
Note (and, in the case of certain covenants, agreements or other provisions,
such failure has continued for 60 calendar days after written notice by the
Trustee or the Holders of at least 25% in principal amount of the Notes); (iv)
default in the payment of Indebtedness of the Company or any of its Subsidiaries
at its final maturity or acceleration of such Indebtedness in an amount in
excess of $5.0 million in the aggregate; (v) certain events of bankruptcy or
insolvency with respect to the Company or any of its Subsidiaries; (vi) certain
undischarged judgments in excess of $5.0 million in the aggregate; or (vii) the
Note Guarantee of any Guarantor being held in any judicial proceeding to be
unenforceable or invalid or ceasing for any reason to be in full force and
effect (other than in accordance with the terms of the Indenture) or any
Guarantor or any Person acting on behalf of any Guarantor denying or
disaffirming the Note Guarantee of such Guarantor.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes, subject to certain
limitations, may declare all the Notes to be immediately due and payable.
Certain events of bankruptcy or insolvency shall result in the Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power under the Indenture.
The Holders of a majority in principal amount of the then outstanding Notes, by
written notice to the Trustee and the Company, may rescind any declaration of
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, interest, premium or Additional Interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
16. Individual Rights of Trustee.
----------------------------
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Guarantors, if any, or its or their Affiliates with the same
rights it would have if it were not Trustee, Paying Agent or Registrar, as the
case may be, under the Indenture.
C-9
17. No Recourse Against Certain Others.
----------------------------------
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any such Guarantor under the Notes, the Note Guarantees, if
any, or the Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation, solely by reason of its status as a
director, officer, employee, incorporator or stockholder of the Company or any
such Guarantor. By accepting a Note, each Holder waives and releases all such
liability (but only such liability) as part of the consideration for issuance of
such Note to such Holder.
18. Authentication.
--------------
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
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. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. 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.
21. Governing Law.
-------------
THE INDENTURE, ANY NOTE GUARANTEES AND THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note. Requests may be made to:
Port Royal Holdings, Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Secretary
C-10
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $____________.
The following decreases/increase in the principal amount in denominations of
$1,000 or integral multiples thereof at maturity of this Note have been made:
Decrease in Increase in Amount at Maturity Made by
Date of Principal Amount Principal Amount Following such or on Behalf of
Decrease/Increase at Maturity at Maturity Decrease/Increase Trustee
----------------- ----------- ----------- ----------------- -------
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
__________________ ___________________ ___________________ ___________________ ___________________
C-11
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
___________________________________
___________________________________
________________________________________________________________________________
(Please print name and address of transferee)
_______________________________________________________________________________
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint ________________________________ Attorney to
transfer this Note on the Security Register, with full power of substitution.
Dated:_____________________________
_____________________________ ____________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name
as written upon the face of this Note in every particular, without alteration or
any change whatsoever.
C-12
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
[_] In connection with the Change of Control Offer made pursuant to
Section 4.07 of the Indenture, the undersigned hereby elects to have
[_] the entire principal amount
[_] $______________ ($1,000 in principal amount or an integral
multiple thereof)
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or _____________________ an amount in cash equal to
101% of the principal amount indicated in the preceding sentence plus
accrued and unpaid interest and Additional Interest thereon, if any, to the
Change of Control Payment Date.
[_] In connection with the Asset Sale Offer made pursuant to Section 4.08 of
the Indenture, the undersigned hereby elects to have
[_] the entire principal amount
[_] $______________ ($1,000 in principal amount or an integral
multiple thereof)
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or __________________________ an amount in cash
equal to 100% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Asset Sale Purchase Date.
Dated:_______________________________
______________________________ ____________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
C-13
EXHIBIT D
FORM OF EXCHANGE CERTIFICATED NOTE
----------------------------------
FACE OF EXCHANGE CERTIFICATED NOTE
----------------------------------
TKC ACQUISITION CORP.
No.__
10 1/4% SENIOR NOTE DUE 2007
TKC Acquisition Corp., a Tennessee corporation, for value received,
hereby promises to pay to ___________, or its registered assigns, the principal
amount of __________ on October 1, 2007.
Interest Payment Dates: April 1 and October 1, commencing April 1,
1998.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, TKC Acquisition Corp. has caused this Note to be
duly executed under its corporate seal.
TKC ACQUISITION CORP.
By:______________________________
Name:
Title:
Attest:________________________
Dated:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
______________________________________________
as Trustee, certifies that this is one of
the Notes referred to in the Indenture.
By:________________________________
Authorized Signatory
D-2
REVERSE SIDE OF EXCHANGE CERTIFICATED NOTE
------------------------------------------
TKC ACQUISITION CORP.
10 1/4% SENIOR NOTE DUE 2007
1. Indenture.
---------
This Note is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "10 1/4% Senior Notes Due 2007"
(herein called the "Notes") limited in aggregate principal amount to
$100,000,000, issued under an indenture dated as of September 26, 1997 (as
amended or supplemented from time to time, the "Indenture") between the Company,
as issuer, and SunTrust Bank, Atlanta, as trustee (the "Trustee," which term
includes any successor trustee under the Indenture). 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, as amended (15 U.S. Code (S)(S)
77aaa-77bbb). The Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and such Act for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantors, if any, the Trustee and each Holder and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The summary of the terms
of this Note contained herein does not purport to be complete and is qualified
by reference to the Indenture. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture shall control. All capitalized terms
used in this Note which are not defined herein shall have the meanings assigned
to them in the Indenture.
The Indenture restricts, among other things, the Company's ability to
incur additional indebtedness and issue preferred stock, pay dividends or make
certain other restricted payments, incur liens, sell stock of Subsidiaries,
apply net proceeds from certain asset sales, merge or consolidate with any other
person, sell, assign, transfer, lease, convey or otherwise dispose of
substantially all of the assets of the Company and enter into certain
transactions with affiliates.
2. Principal and Interest.
----------------------
TKC Acquisition Corp., a Tennessee corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay the principal amount of ________
to the Holder hereof on October 1, 2007.
The Company shall pay interest at a rate of 10 1/4% per annum, from
September 26, 1997 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually in arrears on
April 1 and October 1 of each year, commencing on April 1, 1998, in cash, to the
Holder hereof until the principal amount hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the Note in
exchange or substitution for which this Note was issued) is registered at the
close of business on the Record Date for interest payable on such
D-3
Interest Payment Date. The Record Date for any interest payment is the close of
business on March 15 or September 15, as the case may be, whether or not a
Business Day, immediately preceding the Interest Payment Date on which such
interest is payable. Any such interest not so punctually paid or duly provided
for ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
such Record Date and shall be paid as provided in Section 2.11 of the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Note is issued pursuant to a Registered Exchange Offer, on or
prior to the Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on the equivalent principal
amount of the Initial Note in exchange for which this Note was issued, up to but
not including the date of issuance of this Note, shall be paid on the first
Interest Payment Date for this Note to the Holder of this Note on the first
Record Date with respect to this Note. If this Note is issued pursuant to a
Registered Exchange Offer, subsequent to the Record Date for the first Interest
Payment Date following such exchange, but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to the equivalent
principal amount of the Initial Note in exchange for which this Note was issued
and any accrued and unpaid interest on this Note through the day before such
Interest Payment Date shall be paid on such Interest Payment Date to the Holder
of such Initial Note on such Record Date.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium, Defaulted Interest and overdue Additional Interest
(without regard to any applicable grace period) at the interest rate borne on
this Note. The Company's obligation pursuant to the previous sentence shall
apply whether such overdue amount is due at its Stated Maturity, as a result of
the Company's obligations pursuant to Section 3.05, Section 4.07 or Section 4.08
of the Indenture, or otherwise.
3. Method of Payment.
-----------------
The Company, through the Paying Agent, shall pay interest on this Note
to the registered Holder of this Note, as provided above. The Holder must
surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest and Additional
Interest, if any, in money of the United States of America that at the time of
payment is legal tender for payment of all debts public and private. Principal,
premium, if any, and interest and Additional Interest, if any, shall be paid by
check mailed to the registered Holders at their registered addresses; provided
that all payments with respect to Notes that the Holders of which have given
wire transfer instructions to the Company, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
D-4
4. Paying Agent and Registrar.
--------------------------
Initially, the Trustee will act as Paying Agent and Registrar under
the Indenture. The Company may, upon written notice to the Trustee, appoint and
change any Paying Agent or Registrar. The Company or any of its Affiliates may
act as Paying Agent or Registrar; provided that if the Company or such Affiliate
--------
is acting as Paying Agent, the Company or such Affiliate shall segregate all
funds held by it as Paying Agent and hold them in trust for the benefit of the
Holders or the Trustee.
5. Note Guarantees.
---------------
There are currently no Note Guarantees. This Note may become entitled
to the benefits of future Note Guarantees to be made by each future direct or
indirect Subsidiary of the Company (each singularly, a "Guarantor" and together,
the "Guarantors"). Each Guarantor will, irrevocably and unconditionally,
jointly and severally, guarantee on a senior subordinated basis the punctual
payment when due, whether at Stated Maturity, by acceleration, in connection
with a Change of Control Offer, an Asset Sale Offer or redemption, or otherwise,
of all obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, interest or Additional Interest, if
any, on the Notes, expenses, indemnification or otherwise. A Guarantor shall be
released from its Note Guarantee upon the terms and subject to the conditions
set forth in the Indenture.
6. Redemption.
----------
The Notes are not redeemable at the option of the Company prior to
April 1, 2002. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 calendar days' prior notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to the applicable Redemption
Date (subject to the right of each Holder of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period beginning April 1 of the years indicated below:
YEAR Percentage
---- ----------
2002 105.125%
2003 103.417%
2004 101.708%
2005 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to April 1, 2000, the
Company, at its option, may redeem up to 35% of the aggregate principal amount
of the Notes originally issued, in part, with the net proceeds of one or more
Public Equity Offering made by the Company or of a capital contribution made by
the Parent to the common equity capital of the Company with the net proceeds of
one or more Public Equity Offerings made by the Parent, at the redemption price
equal to 110.25% of the aggregate principal amount thereof together with accrued
and unpaid interest and Additional Interest, if any, to the date of the
redemption payment;
D-5
provided, however, that after such redemption, the aggregate principal amount of
-------- -------
the Notes outstanding must equal at least 65% of the aggregate principal amount
of the Notes originally issued and provided, further, that such redemption shall
-------- -------
occur within 60 days of the date of closing such Public Equity Offering..
7. Notice of Redemption.
--------------------
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send, or cause to be sent, a notice of
redemption, by first-class mail, postage prepaid, to Holders of Notes to be
redeemed at the addresses of such Holders as they appear in the Note Register.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed on a pro rata basis; provided that
the Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000 (Notes in denominations of $1,000 or less may be redeemed only in whole).
If any Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
any accrued interest will be paid on such Interest Payment Date to the Holder of
the Note on such Record Date. If money in an amount sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the applicable
Redemption Date and certain other conditions are satisfied, interest on the
Notes or portions thereof to be redeemed on the applicable Redemption Date will
cease to accrue.
8. Repurchase at the Option of Holders upon Change of Control.
----------------------------------------------------------
Upon the occurrence of a Change of Control, each Holder shall have the
right in accordance with the terms hereof and the Indenture to require the
Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1,000, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest and Additional
Interest, if any, to the Change of Control Payment Date.
Within 30 calendar days after the date of any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder. The Holder of this
Note may elect to have this Note or a portion hereof in an authorized
denomination purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below and tendering this Note pursuant to the Change
of Control Offer. Unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest from and after the Change of Control Payment Date.
X-0
0. Xxxxxxxxxx at the Option of Holders upon Asset Sale.
--------------------------- -----------------------
If at any time the Company or any Subsidiary engages in any Asset
Sale, as a result of which the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall, within 30 calendar days of the date the amount of
Excess Proceeds exceeds $5.0 million, use the then-existing Excess Proceeds to
make an offer to purchase from all Holders of Notes, on a pro rata basis, Notes
in an aggregate principal amount equal in amount to the then-existing Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon and Additional
Interest, if any, to the Asset Sale Purchase Date. Upon completion of an Asset
Sale Offer (including payment of the Asset Sale Purchase Price for accepted
Notes), any surplus Excess Proceeds that were the subject of such offer shall
cease to be Excess Proceeds, and the Company may then use such amounts for
general corporate purposes.
Within 30 calendar days of the date the amount of Excess Proceeds
exceeds $5.0 million, the Company shall send, or cause to be sent, by first-
class mail, postage prepaid, a notice regarding the Asset Sale Offer to each
Holder. The Holder of this Note may elect to have this Note or a portion hereof
in an authorized denomination purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Asset Sale Offer. Unless the Company defaults in the payment of the Asset
Sale Purchase Price with respect thereto, all Notes or portions thereof selected
for payment pursuant to the Asset Sale Offer will cease to accrue interest from
and after the Asset Sale Purchase Date.
10. Transfer and Exchange.
---------------------
A Holder may transfer or exchange Notes as provided in the Indenture
and subject to certain limitations therein set forth. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes, fees and expenses required by law or permitted
by the Indenture. The Registrar need not register the transfer or exchange of
Certificated Notes or portions thereof selected for redemption (except, in the
case of a Certificated Note to be redeemed in part, the portion of such
Certificated Note not to be redeemed) or any Certificated Notes for a period of
15 calendar days before a selection of Notes to be redeemed.
11. Denominations.
-------------
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
D-7
12. Discharge and Defeasance.
------------------------
Subject to certain conditions, the Company may, at any time, terminate
some or all of the obligations of the Company and each Guarantor, if any, under
the Notes, each Note Guarantee, if any, and the Indenture if the Company
irrevocably deposits in trust with the Trustee, cash or U.S. Government
Obligations for the payment of principal, premium, if any, interest and
Additional Interest, if any, on the Notes to redemption or maturity, as the case
may be.
13. Amendment Waiver.
----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the outstanding Notes (which consent
may, but need not, be given in connection with any tender offer or exchange
offer for the Notes) and (ii) any Default and its consequences 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 and the Trustee may
amend the Indenture or the Notes (i) to evidence the succession of another
Person to the Company and the assumption by such successor of the covenants of
the Company under the Indenture and contained in the Notes; (ii) to add to the
covenants of the Company, for the benefit of the Holders of all of the Notes, or
to surrender any right or power conferred on the Company under the Indenture;
(iii) to add any additional Events of Default; (iv) to provide for
uncertificated Notes in addition to or in place of Certificated Notes; (v) to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee; (vi) to secure the Notes; (vii) to cure any ambiguity in the
Indenture, or to correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or to add any other provisions
with respect to matters or questions arising under the Indenture, provided that
such actions shall not adversely affect the interests of the Holders of Notes in
any material respect; (viii) to comply with the requirements of the Commission
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act; or (ix) to evidence the agreement or acknowledgment of a
Subsidiary that it is a Guarantor for all purposes under the Indenture
(including, without limitation, Article X thereof).
14. Defaults and Remedies.
---------------------
D-8
Under the Indenture, Events of Default include: (i) a default for 30
days in the payment when due of interest on, or Additional Interest with respect
to, the Notes; (ii) default in payment when due of the principal of or premium,
if any, on the Notes; (iii) failure by the Company to observe or perform certain
covenants, conditions, agreements or other provisions of the Indenture or this
Note (and, in the case of certain covenants, agreements or other provisions,
such failure has continued for 60 calendar days after written notice by the
Trustee or the Holders of at least 25% in principal amount of the Notes); (iv)
default in the payment of Indebtedness of the Company or any of its Subsidiaries
at its final maturity or acceleration of such Indebtedness in an amount in
excess of $5.0 million in the aggregate; (v) certain events of bankruptcy or
insolvency with respect to the Company or any of its Subsidiaries; (vi) certain
undischarged judgments in excess of $5.0 million in the aggregate; or (vii) the
Note Guarantee of any Guarantor being held in any judicial proceeding to be
unenforceable or invalid or ceasing for any reason to be in full force and
effect (other than in accordance with the terms of the Indenture) or any
Guarantor or any Person acting on behalf of any Guarantor denying or
disaffirming the Note Guarantee of such Guarantor.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes, subject to certain
limitations, may declare all the Notes to be immediately due and payable.
Certain events of bankruptcy or insolvency shall result in the Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power under the Indenture.
The Holders of a majority in principal amount of the then outstanding Notes, by
written notice to the Trustee and the Company, may rescind any declaration of
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, interest, premium or Additional Interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
15. Individual Rights of Trustee.
----------------------------
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Guarantors, if any, or its or their Affiliates with the same
rights it would have if it were not Trustee, Paying Agent or Registrar, as the
case may be, under the Indenture.
16. No Recourse Against Certain Others.
----------------------------------
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any such Guarantor under the Notes, the Note Guarantees, if
any, or the Indenture or for any claim based
D-9
on, in respect of, or by reason of; such obligations or their creation, solely
by reason of its status as a director, officer, employee, incorporator or
stockholder of the Company or any such Guarantor. By accepting a Note, each
Holder waives and releases all such liability (but only such liability) as part
of the consideration for issuance of such Note to such Holder.
17. Authentication.
--------------
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
18. 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).
19. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. 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.
20. Governing Law.
-------------
THE INDENTURE, ANY NOTE GUARANTEES AND THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note. Requests may be made to:
Port Royal Holdings, Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Secretary
D-10
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
---------------------------------
---------------------------------
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint _________________________________ Attorney to
transfer this Note on the Security Register, with full power of substitution.
Dated: ________________
___________________________ _______________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name
as written upon the face of this Note in every particular, without alteration or
any change whatsoever.
D-11
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
[_] In connection with the Change of Control Offer made pursuant to Section
4.07 of the Indenture, the undersigned hereby elects to have
[_] the entire principal amount
[_] $_______________ ($1,000 in principal amount or an integral multiple
thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or __________________________ an amount in cash
equal to 101% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Change of Control Payment Date.
[_] In connection with the Asset Sale Offer made pursuant to Section 4.08 of
the Indenture, the undersigned hereby elects to have
[_] the entire principal amount
[_] $________________ ($1,000 in principal amount or an integral multiple
thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ____________________________ an amount in cash
equal to 100% of the principal amount indicated in the preceding sentence
plus accrued and unpaid interest and Additional Interest thereon, if any,
to the Asset Sale Purchase Date.
Dated: ________________
______________________________ ______________________________
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
D-12
EXHIBIT E
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER TO A QIB
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Re: TKC Acquisition Corp (the "Company") 10 1/4% Senior Notes Due 2007
------------------------------------------------------------------
(the "Notes")
--- -----
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of September 26,
1997 (as amended and supplemented from time to time, the "Indenture") between
the Company, as issuer and SunTrust Bank, Atlanta, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture. This letter relates to $___________ aggregate principal amount of
Notes which are held in the name of [name of transferor] (the "Transferor") to
effect the transfer of such Notes in exchange for an equivalent beneficial
interest in the Initial Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with (i) the transfer restrictions set forth in the Notes and (ii)
Rule 144A under the United States Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
E-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
_________________________________
[Name of Transferor]
By:______________________________
Name:
Title:
Date:____________________________
cc: Long, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
E-2
EXHIBIT F
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO AN
INSTITUTIONAL ACCREDITED INVESTOR
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Re: TKC Acquisition Corp (the "Company") 10 1/4% Senior Notes Due 2007
------------------------------------------------------------------
(the "Notes")
--- -----
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of September 26,
1997 (as amended and supplemented from time to time, the "Indenture") between
the Company, as issuer, and SunTrust Bank, Atlanta, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
This letter relates to U.S. $___________ aggregate principal amount of
Notes which are held [in certificated form in the name of [name of transferor]
(the "Transferor")] [through the beneficial interest of [name of transferor]
(the "Transferor") in the Initial Global Note] to effect the transfer of such
Notes to an institutional "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended
("Institutional Accredited Investor").
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred (i) in
accordance with the transfer restrictions set forth in the Notes and (ii) to a
transferee that the Transferor reasonably believes is an Institutional
Accredited Investor that is acquiring at least $250,000 principal amount of
Notes for its own account or for one or more accounts as to which the transferee
exercises sole investment discretion and (iii) in accordance with applicable
securities laws of any state of the United States or any other jurisdiction.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
___________________________________
[Name of Transferor]
By:________________________________
Name:
Title:
Date:______________________________
cc: Long, Xxxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
F-2
EXHIBIT G
FORM OF INVESTMENT LETTER
FOR INSTITUTIONAL ACCREDITED INVESTORS
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Re: TKC Acquisition Corp (the "Company") 10 1/4% Senior Notes
---------------------------------------------------------
Due 2007 (the "Notes")
----------------------
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of September 26,
1997 (as amended and supplemented from time to time, the "Indenture") between
the Company and SunTrust Bank, Atlanta, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture
In connection with our proposed purchase of $____________ aggregate
principal amount of Notes, we confirm that:
1. We understand that the Notes have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold except as permitted in the following sentence. We understand and agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Notes are being offered only in a transaction
not involving any public offering within the meaning of the Securities Act, (y)
that if we should resell, pledge or otherwise transfer such Notes within two
years after the later of the date of the original issuance of the Notes and the
last date on which the Company or any affiliate (within the meaning of Rule 144
under the Securities Act ("Rule 144")) of the Company was the owner of such
Notes (or any predecessor of such Notes), or within three months after we cease
to be an affiliate of the Company, such Notes may be resold, pledged or
transferred only (i) to the Company, (ii) so long as Notes are eligible for
resale pursuant to Rule 144A under the Securities Act ("Rule 144A") to a person
whom we reasonably believe is a "qualified institutional buyer" (as defined in
Rule 144A) ("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, (iii) in an offshore transaction in accordance with
Regulation S under the Securities Act, (iv) to an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act ("Institutional Accredited Investor") that
has certified to the Company and the Trustee that it is such an accredited
investor and is acquiring the Notes for investment purposes and not for
distribution, (v) pursuant to an effective registration statement under the
Securities Act or (vi) pursuant to any other available exemption from the
registration requirements of the Securities Act, in each case in accordance with
any applicable securities laws
of any state of the United States, and we will notify any purchaser of the Notes
from us of the above resale restrictions, if then applicable. We further
understand that, in connection with any transfer of the Notes by us, the Company
and the Trustee may request, and if so requested we will furnish, such
certificates, legal opinions and other information as they may reasonably
require to confirm that any such transfer complies with the foregoing
restrictions. We understand that the Notes will be issued in registered form
only and that any certificates issued will bear a legend substantially to the
effect set forth in the Indenture.
2. We are able to fend for ourselves in this transaction, 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 and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment and can afford the complete loss of such investment.
3. We understand that the minimum principal amount of Notes that
may be purchased by an Institutional Accredited Investor is $250,000.
4. We understand that the Company, the Trustee and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations
and agreements, and we agree that if any of the acknowledgments, representations
and warranties deemed to have been made by us by our purchase of Notes, for our
own account or for one or more accounts as to each of which we exercise sole
investment discretion, are no longer accurate, we shall promptly notify the
Company and the Trustee.
5. We are acquiring the Notes purchased by us for investment
purposes, and not for distribution, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion and we are
or such account is an Institutional Accredited Investor.
G-2
6. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
_________________________________
[Name of Purchaser]
By:
_______________________________
Name:
Title:
Date:____________________________
cc: Long, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
G-3
EXHIBIT H
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
TO A NON-U.S. PERSON
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Re: TKC Acquisition Corp (the "Company") 10 1/4% Senior Notes Due 2007
------------------------------------------------------------------
(the "Notes")
--------------
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of September 26,
1997 (as amended and supplemented from time to time, the "Indenture") between
the Company, as issuer, and SunTrust Bank, Atlanta, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
This letter relates to $_____________ aggregate principal amount of
Notes which are held [in certificated form in the name of [name of transferor]
(the "Transferor")] [through the beneficial interest of [name of transferor]
(the "Transferor") in the Initial Global Note] to effect the transfer of such
Notes in exchange for Initial Certificated Notes.
In connection with such request, the Transferor does hereby certify
that such Notes are being transferred in accordance with (i) the transfer
restrictions set forth in the Notes and (ii) Regulation S ("Regulation S") under
the United States Securities Act of 1933, as amended (the "Securities Act") and
does hereby further certify that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market, and neither the Transferor,
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a Restricted Period (as
defined in Regulation S) and the provisions of Rule 903(c)(2) or (3) or Rule
904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1), as the case
may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
________________________________________
[Name of Transferor]
By:_____________________________________
Name:
Title:
Date:___________________________________
cc: Long, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
H-2
EXHIBIT I
FORM OF INVESTMENT LETTER
FOR REGULATION S PURCHASERS
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Re: TKC Acquisition Corp (the "Company") 10 1/4% Senior Notes Due 2007
------------------------------------------------------------------
(the "Notes")
-------------
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of September 26,
1997 (as amended and supplemented from time to time, the "Indenture") between
the Company, as issuer, and SunTrust Bank, Atlanta, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of the Notes which are held [in certificated form in the name
of [name of transferor] (the "Transferor")] [through the beneficial interest of
[name of transferor] (the "Transferor") in the Initial Global Note], we hereby
certify that we are (or we will hold such Notes on behalf of) a person outside
the United States to whom the Notes could be transferred in accordance with Rule
904 of Regulation S promulgated under the United States Securities Act of 1933,
as amended.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
___________________________________
[Name of Purchaser]
By:________________________________
Name:
Title:
Date:______________________________
cc: Long, Xxxxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
EXHIBIT J
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of September 26, 1997
By and Among
TKC ACQUISITION CORP.,
as acquiror of The Xxxxxxx Company
as Issuer
and
UBS SECURITIES LLC
as Initial Purchaser
================================================================================
$100,000,000
10 1/4% SENIOR NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
---------
September 26, 1997, by and among TKC ACQUISITION CORP., a Tennessee corporation
("TKC"), and UBS SECURITIES LLC (the "Initial Purchaser").
-----------------
WHEREAS, Port Royal Holdings Inc., a Georgia corporation and owner of
100% of the capital stock of TKC ("Holdings") intends to consummate an
acquisition pursuant to which Holdings would acquire The Xxxxxxx Company, a
Tennessee corporation ("Xxxxxxx"), from its existing shareholders through a
merger (the "Merger") of TKC with and into Xxxxxxx which will be the surviving
corporation (any references in this Agreement to the "Issuer" being understood
to refer to (i) TKC before the Merger and (ii) Xxxxxxx as the surviving
corporation after the Merger); and
WHEREAS, this Agreement is being entered into in connection with the
Purchase Agreement, dated September 18, 1997, between the Issuer and the Initial
Purchaser (the "Purchase Agreement"), which provides for the issuance and sale
------------------
(the "Initial Placement") by the Issuer to the Initial Purchaser of $100,000,000
aggregate principal amount of the Issuer's 10 1/4% Senior Notes due 2007 (the
"Notes"). In order to induce the Initial Purchaser to enter into the Purchase
------
Agreement, the Issuer has agreed to provide the registration rights set forth in
this Agreement for the benefit of the Initial Purchaser and its direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchaser to purchase the Notes under
the Purchase Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition
-----------
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Additional Interest" has the meaning set forth in Section 4 hereof.
-------------------
"Affiliate" of any specified person means (i) any other person
---------
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person or (ii) any other person who is a
director or executive officer of (a) such specified person or (b) any person
described in the preceding clause (i). For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of any class, or any series of
--------
any class, of equity securities of a person, whether or not voting, shall be
deemed to be control.
"Closing Date" has the meaning set forth in the Purchase Agreement.
------------
"Commission" means the United States Securities and Exchange
----------
Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Issuer identical in all
--------------
material respects to the Notes (except that the Additional Interest provisions
and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate), to be issued under the Indenture.
"Exchange Offer Registration Period" means the one year period
----------------------------------
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement; provided, however,
-------- -------
that in the event that all resales of Exchange Notes (including, subject to the
time periods set forth herein, any resales by Exchanging Dealers) covered by
such Exchange Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not thereafter remain continuously effective for
such period.
"Exchange Offer Registration Statement" means a registration statement
-------------------------------------
of the Issuer on an appropriate form under the Securities Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
-----------------
Purchaser) that is a broker-dealer, electing to exchange Notes acquired for its
own account as a result of market-making activities or other trading activities
for Exchange Notes.
"Final Memorandum" means the final offering memorandum relating to the
----------------
offering of the Notes dated September 18, 1997, as supplemented and amended by
the supplemental offering memorandum dated September 25, 1997.
"Holder" means any holder from time to time of Registrable Notes or
------
Exchange Notes (including the Initial Purchaser).
"Indenture" means the indenture relating to the Notes and the Exchange
---------
Notes, to be dated as of the Closing Date, between the Issuer and SunTrust Bank,
Atlanta as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof. It
shall include the provisions of the Trust Indenture Act that are deemed to be
part of and govern the indenture.
"Initial Placement" has the meaning set forth in the preamble hereto.
-----------------
"Initial Purchaser" has the meaning set forth in the preamble hereto.
-----------------
"Losses" has the meaning set forth in Section 7(d) hereto.
------
"Majority Holders" means the Holders of a majority of the aggregate
----------------
principal amount of Registrable Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
---------------------
bankers and manager or managers that shall administer an underwritten offering
under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
-----
2
"Prospectus" means the prospectus included in any Registration
----------
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
------------------
"Registered Exchange Offer" means the proposed offer to the Holders to
-------------------------
issue and deliver to such Holders, in exchange for the Notes, a like principal
amount of Exchange Notes.
"Registrable Notes" means each Note upon original issuance of the
-----------------
Notes and at all times subsequent thereto, each Exchange Note as to which
clauses (iii), (iv) or (v) of the first paragraph of Section 3 hereof are
applicable upon original issuance and at all times subsequent thereto, until in
the case of any such Note or Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which clauses (iii), (iv) or (v) of the first paragraph of Section 3
hereof are applicable, the Exchange Registration Statement) covering such Note
or Exchange Note, as the case may be, has been declared effective by the SEC and
such Note (unless such Note was not tendered for exchange by the Holder thereof)
or Exchange Note, as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Note or Exchange Note, as the
case may be, is sold in compliance with Rule 144, or (iii) such Note or Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
"Registration Statement" means any Exchange Offer Registration
----------------------
Statement or Shelf Registration Statement that covers any of the Registrable
Notes (including any Note Guarantees of each thereof) pursuant to the provisions
of this Agreement, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all material incorporated by
reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section
------------------
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
-------------------------
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
----------------------------
of the Issuer pursuant to the provisions of Section 3 hereof, which covers some
or all of the Registrable Notes, as applicable, on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the Commission, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" means the trustee with respect to the Notes or Exchange
-------
Notes, as applicable, under the Indenture.
"underwriter" means any underwriter of Registrable Notes in connection
-----------
with an offering thereof under a Shelf Registration Statement.
3
2. Registered Exchange Offer; Resales of Exchange Notes by Exchanging
------------------------------------------------------------------
Dealers; Private Exchange. (a) The Issuer shall prepare and, within 60 days
-------------------------
from the date of original issuance of the Notes, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Issuer shall use its best efforts (i) to cause the Exchange
Offer Registration Statement to be declared effective under the Securities Act
within 150 days from the date of original issuance of the Notes, and (ii) to
consummate the Registered Exchange Offer within 180 days from the date of
original issuance of the Notes.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly commence the Registered Exchange Offer and
use its best efforts to issue on or prior to 30 days after the date on which the
Exchange Offer Registration Statement is declared effective by the Commission
Exchange Notes in exchange for all Registrable Notes tendered prior thereto in
the Registered Exchange Offer. The objective of such Registered Exchange Offer
is to enable each Holder electing to exchange Registrable Notes for Exchange
Notes (assuming that such Holder (x) is not an "affiliate" of the Issuer within
the meaning of the Securities Act, (y) is not a broker-dealer that acquired the
Registrable Notes in a transaction other than as a part of its market-making or
other trading activities and (z) if such Holder is not a broker-dealer, acquires
the Exchange Notes in the ordinary course of such Holder's business, is not
participating in the distribution of the Exchange Notes and has no arrangements
or understandings with any person to participate in the distribution of the
Exchange Notes) to resell such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Issuer
shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance for not
less than 30 days and not more than 45 days (or longer if required by
applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuer shall:
(i) accept for exchange all Registrable Notes duly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Registrable Notes
so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder Exchange Notes equal in principal amount to the Registrable Notes of
such Holder so accepted for exchange.
4
(e) The Initial Purchaser and the Issuer acknowledge that, pursuant
to interpretations by the staff of the Commission of Section 5 of the Securities
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Registrable Notes acquired for its own account as
a result of market-making activities or other trading activities. Accordingly,
the Issuer shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus forming a part of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the Registered
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the
Exchange Offer Registration Period for delivery of the prospectus included
therein by Exchanging Dealers in connection with sales of Exchange Notes
received pursuant to the Registered Exchange Offer, as contemplated by
Section 5(h) below.
(f) In the event that the Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Registrable Notes constituting any portion of an unsold allotment,
upon the effectiveness of the Shelf Registration Statement as contemplated by
Section 3 hereof and at the request of the Initial Purchaser, the Issuer shall
issue and deliver to the Initial Purchaser, or to the party purchasing
Registrable Notes registered under the Shelf Registration Statement from the
Initial Purchaser, in exchange for such Registrable Notes, a like principal
amount of Exchange Notes. The Issuer shall use its best efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange Notes as
for Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
------------------
applicable interpretations thereof by the Commission's staff, the Issuer
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof, or (ii) the
Registered Exchange Offer is not consummated within 180 days from the date of
original issuance of the Notes, or (iii) the Initial Purchaser so requests with
respect to Registrable Notes held by it as a result of the purchase of such
Registrable Note directly from the Issuer following consummation of the
Registered Exchange Offer, or (iv) any Holder (other than the Initial Purchaser)
is not eligible to participate in the Registered Exchange Offer or the Exchange
Notes such Holder would receive in the Registered Exchange Offer could only be
reoffered and resold by such Holder upon compliance with the registration and
prospectus delivery requirements of the Securities Act and the delivery of the
Prospectus contained in the Exchange Offer Registration Statement, as
appropriately amended, is not a legally available alternative, or (v) in the
case where the Initial Purchaser participates in the Registered Exchange Offer
or acquires Exchange Notes pursuant to Section 2(f) hereof, the Initial
Purchaser does not receive freely tradable Exchange Notes in exchange for Notes
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Securities Act in connection with sales of Exchange
Notes acquired in exchange for such Registrable Notes shall result in such
Exchange Notes being not "freely tradable" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Notes acquired in the Registered Exchange Offer in exchange for Registrable
Notes acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Notes being not "freely tradable"),
the following provisions shall apply:
5
(a) The Issuer shall, as promptly as practicable (but in no event
more than 60 days after so required or requested pursuant to this Section 3),
file with the Commission a Shelf Registration Statement relating to the offer
and sale of the Registrable Notes by the Holders from time to time in accordance
with the methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement and Rule 415 under the Securities Act, provided,
--------
that with respect to Exchange Notes received by the Initial Purchaser in
exchange for Notes constituting any portion of an unsold allotment, the Issuer
may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of its obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Issuer shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act on or
prior to 45 days after filing such Shelf Registration Statement pursuant to this
Section 3 and to keep such Shelf Registration Statement continuously effective
in order to permit the Prospectus contained therein to be usable by Holders for
a period of two years (or, if Rule 144(k) under the Securities Act is amended to
allow for resales pursuant to such Rule after a shorter period, such shorter
period) from the date the Shelf Registration Statement is declared effective by
the Commission or such shorter period that will terminate when all the
Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Issuer shall be deemed not
to have used its best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would result
in Holders of Registrable Notes covered thereby not being able to offer and sell
such notes during that period, unless such action is required by applicable law
and the Issuer promptly thereafter complies with the requirements of Section
5(k) hereof, if applicable.
(c) No Holder of Registrable Notes may include any of its Registrable
Notes in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Issuer in writing, within 20 business days
after receipt of a request therefor, such information as the Issuer may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. No Holder of
Registrable Notes shall be entitled to Additional Interest pursuant to Section 4
hereof unless and until such Holder shall have used its best efforts to provide
all such reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Issuer all information required to be disclosed in order to make the information
previously furnished to the Issuer by such Holder not misleading.
4. Additional Interest. If (i) either the Exchange Offer
-------------------
Registration Statement or the Shelf Registration Statement is not filed with the
Commission on or prior to the date specified for such filing in this Agreement,
(ii) either the Exchange Offer Registration Statement or the Shelf Registration
Statement has not been declared effective by the Commission on or prior to the
target date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been consummated
within 30 days after the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) either the Exchange Offer Registration
Statement or the Shelf Registration Statement is filed and declared effective
but thereafter ceases to be effective during the applicable Exchange Offer
Registration Period or Shelf Registration Period, as the case may be (each such
event referred to in clauses (i) through (iv), a "Registration Default"), the
Issuer hereby agrees to pay additional interest ("Additional Interest") to each
Holder of Registrable Notes with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an amount equal to 0.5%
per annum of the principal amount of Registrable Notes held by such Holder. The
amount of the Additional Interest
6
payable to each Holder for such Registration Default will increase by an
additional 0.5% per annum of the principal amount of Registrable Notes held by
such Holder with respect to each subsequent 90-day period until such
Registration Default has been cured, up to an aggregate maximum amount of
Additional Interest of 1.0% per annum of the principal amount of Registrable
Notes for all Registration Defaults. All accrued Additional Interest will be
paid by the Issuer on each Interest Payment Date (as such term is defined in the
Indenture) to the Holders of record with respect to such Interest Payment Date
by wire transfer of immediately available funds or by federal funds check.
Additional Interest payable (a) with respect to the Registration Default
specified in clause (i) above, shall cease to accrue upon filing of the Exchange
Offer Registration Statement (and, if applicable, the Shelf Registration
Statement), (b) with respect to the Registration Default specified in clause
(ii) above, shall cease to accrue upon the effectiveness of the Exchange Offer
Registration Statement (and, if applicable, the Shelf Registration Statement),
(c) with respect to the Registration Default specified in clause (iii) above,
shall cease to accrue upon consummation of the Exchange Offer, and (d) with
respect to the Registration Default specified in clause (iv) above, shall cease
to accrue upon the filing of a post-effective amendment to the Registration
Statement that causes the Exchange Offer Registration Statement (and, if
applicable, the Shelf Registration Statement) again to be declared effective, as
the case may be. Following the cure of all Registration Defaults, the accrual
of Additional Interest will cease, and all accrued and unpaid Additional
Interest shall be paid to Holders of Registrable Notes promptly thereafter.
The Issuer shall notify the Trustee within five days after the
occurrence of each and every Registration Default. The parties hereto agree
that the Additional Interest provided for in this Section 4 constitutes a
reasonable estimate of the damages that will be incurred by Holders by reason of
any Registration Default.
5. Registration Procedures. In connection with any Shelf
-----------------------
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuer shall furnish to the Initial Purchaser, prior to the
filing thereof with the Commission, a copy of any Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its best efforts to reflect in each
such document, when so filed with the Commission, such comments as the Initial
Purchaser reasonably may propose.
(b) The Issuer shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Securities Act;
(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
7
(c) (1) The Issuer shall advise the Initial Purchaser and, in the
case of a Shelf Registration Statement, the Holders of Registrable Notes covered
thereby, and, if requested by the Initial Purchaser or any such Holder, confirm
such advice in writing:
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Issuer shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders of
Registrable Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in writing to
the Issuer a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchaser or any such Holder or Exchanging Dealer,
confirm such advice in writing:
(i) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Issuer of any notification with respect
to the suspension of the qualification of the Registrable Notes included
therein for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that, as of such
date, the Registration Statement or the Prospectus does not include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made).
Each Holder agrees by acquisition of a Registrable Note (or Exchange Note in the
case of resales of Exchange Notes by Exchanging Dealers) that, upon receipt of
any notice from the Issuer of the existence of any fact of the kind described in
paragraph (iii) above, such Holder will forthwith discontinue disposition of
Registrable Notes (or Exchange Notes in the case of resales of Exchange Notes by
Exchanging Dealers), pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing by the
Issuer that the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Issuer, each Holder will deliver to the
Issuer (at the Issuer's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus concerning such Registrable
Notes (or Exchange Notes in the case of resales of Exchange Notes by Exchanging
Dealers) that was current at the time of receipt of such notice.
(d) The Issuer shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
8
(e) The Issuer shall furnish to each Holder of Registrable Notes
covered by any Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those incorporated by reference).
(f) The Issuer shall, during the Shelf Registration Period, deliver
to each Holder of Registrable Notes covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request; and the Issuer
consents to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Notes in connection with the offering
and sale of the Registrable Notes covered by the Prospectus or any amendment or
supplement thereto.
(g) The Issuer shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein and,
if the Exchanging Dealer so requests in writing, all exhibits thereto (including
those incorporated by reference).
(h) The Issuer shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Exchanging Dealer may reasonably request
for delivery in connection with a sale of Exchange Notes received by it pursuant
to the Registered Exchange Offer; and the Issuer consents to the use of the
Prospectus or any amendment or supplement thereto by any such Exchanging Dealer,
as provided in Section (2)(e) above.
(i) Prior to the Registered Exchange Offer or any other offering of
Registrable Notes pursuant to any Registration Statement, the Issuer shall
register or qualify or cooperate with the Holders of Registrable Notes included
therein and their respective counsel in connection with the registration or
qualification of such Registrable Notes for offer and sale under the securities
or blue sky laws of such states as any such Holders reasonably request in
writing and do any and all other acts or things necessary or advisable to enable
the offer and sale in such states of the Registrable Notes covered by such
Registration Statement; provided, however, that the Issuer will not be required
-------- -------
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not then so qualified, to file any general consent
to service of process or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject.
(j) The Issuer shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable Notes
to be sold pursuant to any Registration Statement free of any restrictive
legends and in denominations of $1,000 or an integral multiple thereof and
registered in such names as Holders may request prior to sales of Registrable
Notes pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Issuer shall promptly prepare and file a
post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or any other required document so that, as
thereafter delivered to purchasers of the Registrable Notes included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
9
(l) Not later than the effective date of any such Registration
Statement hereunder, the Issuer shall provide a CUSIP number for the Registrable
Notes or Exchange Notes, as the case may be, registered under such Registration
Statement, and provide the Trustee with printed certificates for such
Registrable Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(m) The Issuer shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act.
(n) The Issuer shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a timely
manner.
(o) The Issuer may require each Holder of Registrable Notes to be
sold pursuant to any Shelf Registration Statement to furnish to the Issuer such
information regarding the Holder and the distribution of such Registrable Notes
as the Issuer may from time to time reasonably require for inclusion in such
Registration Statement and such other information as may be necessary or
advisable in the reasonable opinion of the Issuer and its counsel, in connection
with any such Registration Statement. No Holder of Registrable Notes shall be
entitled to use a Prospectus unless and until such Holder shall have furnished
the reasonably requested information required by this Section 5(o), and shall
have committed to notify the Issuer promptly of any change in such information.
(p) The Issuer shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and Majority
Holders reasonably agree should be included therein, and shall make all required
filings of such Prospectus supplement or post-effective amendment promptly upon
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Issuer shall
enter into such agreements (including underwriting agreements in form and scope
as is customary for similar offerings of debt securities) and take all other
customary and appropriate actions in order to expedite or to facilitate the
registration or the disposition of any Registrable Notes included therein, and
in connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 (or such other provisions and procedures acceptable
to the Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 7.
(r) In the case of any Shelf Registration Statement, the Issuer
shall:
(i) make reasonably available for inspection by the Holders of
Registrable Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Issuer and its
subsidiaries;
(ii) cause the Issuer's officers, directors and employees to supply
all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Registration Statement, as is customary for similar due diligence
examinations and make such representatives of the Issuer as shall be
reasonably requested by the
10
Initial Purchaser available for discussion of any such Registration
Statement; provided, however, that any information that is designated in
-------- -------
writing by the Issuer, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or
any such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality other than as a
result of a disclosure of such information by any such Holder, underwriter,
attorney, accountant or agent;
(iii) make such representations and warranties to the Holders of
Registrable Notes registered thereunder and the underwriters, if any, in
form, substance and scope, and at such time or times, as are customarily
made by issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them;
(iv) obtain opinions of counsel to the Issuer and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters and time
periods as are customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Issuer or of any business acquired by the Issuer for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to the underwriters, if any, and use
reasonable efforts to have such letter addressed to the selling Holders of
Registrable Notes registered thereunder (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (AICPA) ("SAS 72")), in customary form and
covering matters and time periods of the type customarily covered in "cold
comfort" letters in connection with similar underwritten offerings, or if
the provision of such "cold comfort" letters is not permitted by SAS No. 72
or if requested by the Initial Purchaser or its counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35 of the AICPA, covering matters and time periods
reasonably requested by the Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
and customarily delivered in similar offerings, including those to evidence
compliance with Section 5(k) and with any conditions contained in the
underwriting agreement or other agreement entered into by the Issuer.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
of this Section 5(r) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(s) The Issuer shall, if and to the extent required under the
Securities Act and/or the Trust Indenture Act and the rules and regulations
thereunder in order to register the Registrable Notes (including the Note
Guarantees, if any) under the Securities Act and qualify the Indenture under the
Trust Indenture Act, cause each Guarantor, if any, to sign any Registration
Statement and take all other action necessary to register the Note Guarantees,
if any, under the applicable Registration Statement.
11
6. Registration Expenses. The Issuer shall bear all expenses
---------------------
incurred in connection with the performance of its obligations under Sections 2,
3, 4 and 5 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchaser for the reasonable fees and
disbursements of counsel acting in connection therewith.
7. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, the Issuer agrees to indemnify and hold harmless to the
fullest extent lawful each Holder of Registrable Notes covered thereby
(including the Initial Purchaser and, with respect to any Prospectus delivery as
contemplated by Sections 2(e) and 5(h) hereof, each Exchanging Dealer) the
directors, officers, employees and agents of such Holder and each person who
controls such Holder within the meaning of either the Securities Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage or liability (or action in respect
thereof); provided, however, that the Issuer will not be liable in any case to
-------- -------
the extent that any such loss, claim, damage or liability (A) arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Issuer by or on behalf of any such Holder
specifically for inclusion therein or (B) are caused by an untrue statement or
omission that was contained or made in any preliminary Prospectus and corrected
in the related Prospectus or any supplement or amendment thereto and (1) any
such losses, claims, damages, liabilities or expenses suffered or incurred by
any indemnified party resulted from an action, claim or suit by any person who
purchased Registrable Notes or Exchange Notes from a Holder in the offering to
which such Prospectus relates, (2) such Holder failed to deliver or provide a
copy of such Prospectus or any such supplement or amendment thereto to such
person at or prior to the confirmation of the sale of such Registrable Notes or
Exchange Notes in any case where such delivery is required by the Securities Act
and (3) such Prospectus (as so amended and supplemented) would have cured the
defect giving rise to such loss, liability, claim, damage or expense. The
indemnification provided herein will be in addition to any liability that the
Issuer may otherwise have.
The Issuer also agrees to indemnify or contribute to the Losses of, as
provided in Section 7(d) hereof, any underwriters of Registrable Notes
registered under a Shelf Registration Statement, their employees, officers,
directors and agents and each person who controls such underwriters on the same
basis (including the proviso) as that of the indemnification of the Initial
Purchaser and the selling Holders provided in this Section 7(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 5(q) hereof.
(b) Each Holder of Registrable Notes covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated by Sections 2(e) and 5(h) hereof, each Exchanging
Dealer) severally and not jointly agrees to indemnify and hold harmless the
Issuer, its directors, officers, employees, agents and each person who controls
the Issuer within the meaning of
12
either the Securities Act or the Exchange Act to the same extent as the
foregoing indemnity from the Issuer to each such Holder, but only with respect
to written information furnished to the Issuer by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of rights and defenses, and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel (including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
-------- -------
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party (it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for such indemnified persons). An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement that resulted in such Losses; provided, however, that in
-------- -------
no case shall any Initial Purchaser or any subsequent Holder of any Registrable
Note or
13
Exchange Note be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Registrable Note, or in the
case of a Exchange Note, applicable to the Registrable Note that was
exchangeable into such Exchange Note, as set forth on the cover page of the
Final Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the notes
purchased by such underwriter under the Registration Statement that resulted in
such Losses. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuer shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum and (y) the total amount of Additional Interest that the Issuer
was not required to pay as a result of registering the notes covered by the
Registration Statement that resulted in such Losses. Benefits received by the
Initial Purchaser shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Final Memorandum received
by such Initial Purchaser, and benefits received by any other Holders shall be
deemed to be equal to the incremental value of receiving Registrable Notes or
Exchange Notes, as applicable, registered under the Securities Act over the
value of receiving Registrable Notes or Exchange Notes, as applicable, not so
registered. Benefits received by any underwriter shall be deemed to be equal to
the total underwriting discounts and commissions, as set forth on the cover page
of the Prospectus forming a part of the Registration Statement that resulted in
such Losses received by such Underwriter. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities, expenses or judgments referred to above shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified person in
connection with investigating or defending any such action or claim. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation that did not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls a Holder within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Issuer within the meaning of either the Securities Act or the
Exchange Act, each director, officer, employee and agent of the Issuer shall
have the same rights to contribution as the Issuer, subject in each case to the
applicable terms and conditions of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
7(d), notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7(d) or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent; provided, however, that such written consent was not
-------- -------
unreasonably withheld.
(e) The provisions of this Section 7 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Issuer or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive the sale by a Holder of notes covered by a
Registration Statement.
14
8. Rules 144 and 144A
------------------
The Issuer covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time
the Issuer is not required to file such reports, it will, upon the request of
any Holder of Registrable Notes, make publicly available annual reports and such
information, documents and other reports of the type specified in Sections 13
and 15(d) of the Exchange Act. The Issuer further covenants, for so long as any
Registrable Notes remain outstanding, to make available to any Holder or
beneficial owner of Registrable Notes in connection with any sale thereof and
any prospective purchaser of such Registrable Notes from such Holder or
beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
Rule 144A.
9. Miscellaneous.
-------------
(a) Remedies. Each Holder, in addition to being entitled to exercise
--------
all rights provided herein, in the Indenture or in the Purchase Agreement or
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Issuer agrees that monetary
damages (including the Additional Interest contemplated hereby) would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby waives the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer has not, as of the date
--------------------------
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement that conflicts with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuer has obtained the written
consent of the Holders of at least a majority of the then-outstanding aggregate
principal amount of Registrable Notes (or, after the consummation of any
Exchange Offer in accordance with Section 2 hereof, of Exchange Notes);
provided, that, with respect to any matter that directly or indirectly affects
-------- ----
the rights of the Initial Purchaser hereunder, the Issuer shall obtain the
written consent of the Initial Purchaser. Notwithstanding the foregoing (except
the foregoing proviso), a waiver or consent to departure from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Registrable Notes are being sold pursuant to a Registration
Statement, and that does not directly or indirectly affect the rights of other
Holders, may be given by the Majority Holders, determined on the basis of notes
being sold rather than registered under such Registration Statement.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Issuer in accordance with the provisions of this Section
9(d), which address initially is, with respect to each Holder, the address
of such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to the Initial Purchaser;
15
(ii) if to the Initial Purchaser, initially at UBS Securities LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxxx Xxxxx.
(iii) if to the Issuer, Port Royal Holdings, Inc., Xxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: Secretary.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchaser, on the one hand, or the Issuer, on
the other, by notice to the other party or parties may designate additional or
different addresses for subsequent notices or communications.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without the need for an express assignment or any consent by
the Issuer thereto, subsequent Holders of Registrable Notes. The Issuer hereby
agrees to extend the benefits of this Agreement to any Holder of Registrable
Notes and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto. Each future Guarantor of the Notes
shall become a party to this Agreement and all references to Guarantor hereunder
shall include such Guarantor.
(f) Counterparts. This agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SAID STATE.
(i) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(j) Notes Held by the Issuer, etc. Whenever the consent or approval
------------------------------
of Holders of a specified percentage of principal amount of Registrable Notes is
required hereunder, Registrable Notes, held by the Issuer or its Affiliates
(other than subsequent Holders of Registrable Notes if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Registrable Notes) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Participation In Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten Shelf Registration hereunder unless such Holder
(a) agrees to sell such Holder's Registrable Notes on the basis provided in any
underwriting arrangements approved by the Issuer and the Majority Holders and
(b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
16
(l) Selection of Underwriters. The Holders of Registrable Notes
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell such
notes in an underwritten offering. In any such underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Majority Holders of notes
included in such offering; provided, that such investment bankers and managers
--------
must be reasonably satisfactory to the Issuer.
17
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and you.
Very truly yours,
TKC ACQUISITION CORP.
By: _______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
The foregoing Agreement is hereby
accepted as of the date first above written.
UBS SECURITIES LLC
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Notes where such Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date (as
defined herein) and ending on the close of business one year after the
Expiration Date, it will make this Prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of Distribution".
A-1
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting
on the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until ____________, 199__, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their
own account pursuant to the Exchange Offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any broker-
dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit from any such resale of
Exchange Notes and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Securities Act. The
Letter of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Notes (including any broker-
dealers) against certain liabilities, including liabilities under the Securities
Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
[_]
Name: ____________________________________________
Address: ____________________________________________
____________________________________________
The undersigned represents that it is not an affiliate of the Company,
that any Exchange Notes to be received by it will be acquired in the ordinary
course of business and that at the time of the commencement of the Exchange
Offer it had no arrangement with any person to participate in a distribution of
the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
D-1
