EXHIBIT 99(b)
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REPUBLIC GROUP INCORPORATED, as Company
AND
UMB BANK, N.A., as Trustee
Indenture
Dated as of July 15, 1998
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$100,000,000
9.50% Senior Subordinated Notes due 2008
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................................13
SECTION 1.02. Other Definitions...............................................................31
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.01. Authentication and Delivery of Securities.......................................32
SECTION 2.02. Execution of Securities.........................................................32
SECTION 2.03. Certificate of Authentication...................................................32
SECTION 2.04. Form, Denomination and Date of Securities; Payments of
Interest..............................................................................32
SECTION 2.05. Restrictive Legends.............................................................34
SECTION 2.06. Registration, Transfer and Exchange.............................................36
SECTION 2.07. Book-Entry Provisions for Global Securities.....................................37
SECTION 2.08. Special Transfer Provisions.....................................................39
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.......................43
SECTION 2.10. Cancellation of Securities......................................................44
SECTION 2.11. Temporary Securities............................................................44
SECTION 2.12. CUSIP and CINS Numbers..........................................................44
ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE.
SECTION 3.01. Payment of Principal and Interest...............................................45
SECTION 3.02. Offices for Payments, etc.......................................................45
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee..............................46
SECTION 3.04. Paying Agents...................................................................46
SECTION 3.05. Certificates to Trustee.........................................................47
SECTION 3.06. Securityholders' Lists..........................................................47
SECTION 3.07. Reports by the Trustee..........................................................47
SECTION 3.08. Limitation on Restricted Payments...............................................48
SECTION 3.09. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock....................................................................50
SECTION 3.10. Disposition of Proceeds of Asset Sales..........................................53
SECTION 3.11. Limitation on Liens.............................................................57
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SECTION 3.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.....................................................57
SECTION 3.13. Limitation on Line of Business..................................................58
SECTION 3.14. Limitation on Senior Subordinated Debt...........................................58
SECTION 3.15. Limitation on Transactions with Affiliates......................................58
SECTION 3.16. Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries...............................................................59
SECTION 3.17. Change of Control...............................................................60
SECTION 3.18. Reports.........................................................................62
SECTION 3.19. Waiver of Stay, Extension or Usury Laws.........................................63
ARTICLE 4
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Events of Default...............................................................64
SECTION 4.02. Acceleration....................................................................66
SECTION 4.03. Other Remedies..................................................................66
SECTION 4.04. Waiver of Past Defaults.........................................................66
SECTION 4.05. Control by Majority.............................................................67
SECTION 4.06. Limitation on Suits
.....................................................................................67
SECTION 4.07. Rights of Holders to Receive Payment............................................67
SECTION 4.08. Collection Suit by Trustee......................................................68
SECTION 4.09. Trustee May File Proofs of Claim................................................68
SECTION 4.10. Priorities......................................................................68
SECTION 4.11. Undertaking for Costs...........................................................69
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default......................................................................69
SECTION 5.02. Certain Rights of the Trustee...................................................70
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof.........................................72
SECTION 5.04. Trustee and Agents May Hold Securities; Collections, etc........................72
SECTION 5.05. Moneys Held by Trustee..........................................................72
SECTION 5.06. Notice of Default...............................................................73
SECTION 5.07. Compensation and Indemnification of Trustee and Its
Prior Claim...........................................................................73
SECTION 5.08. Right of Trustee to Rely on Officer's Certificate, etc..........................74
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SECTION 5.09. Persons Eligible for Appointment as Trustee.....................................74
SECTION 5.10. Resignation and Removal; Appointment of Successor
Trustee...............................................................................74
SECTION 5.11. Acceptance of Appointment by Successor Trustee..................................76
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee...................................................................76
SECTION 5.13. Preferential Collection of Claims...............................................77
ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.01. Evidence of Action Taken by Holders.............................................77
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date...............................................................78
SECTION 6.03. Securities Owned by Company Deemed Not Outstanding..............................78
SECTION 6.04. Right of Revocation of Action Taken.............................................79
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of Holders..............................79
SECTION 7.02. With Consent of Holders.........................................................80
SECTION 7.03. Effect of Supplemental Indenture................................................81
SECTION 7.04. Documents to Be Given to Trustee; Compliance with TIA...........................82
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures............................................................................82
ARTICLE 8
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 8.01. When the Company May Merge, Etc.................................................82
SECTION 8.02. Successor Corporation Substituted...............................................83
SECTION 8.03. Opinion of Counsel to Trustee...................................................83
ARTICLE 9
SUBORDINATION
SECTION 9.01. Agreement to Subordinate........................................................84
SECTION 9.02. Liquidation; Dissolution; Bankruptcy............................................84
SECTION 9.03. Default on Designated Senior Debt...............................................85
SECTION 9.04. When Distributions Must Be Paid Over............................................85
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SECTION 9.05. Notice..........................................................................86
SECTION 9.06. Subrogation.....................................................................86
SECTION 9.07. Relative Rights.................................................................87
SECTION 9.08. The Company and Holders May Not Impair Subordination............................87
SECTION 9.09. Distribution or Notice to Representative........................................88
SECTION 9.10. Rights of Trustee and Paying Agent..............................................88
SECTION 9.11. Authorization to Effect Subordination
.....................................................................................89
SECTION 9.12. Payment.........................................................................89
ARTICLE 10
REDEMPTION OF SECURITIES
SECTION 10.01. Right of Optional Redemption; Prices...........................................89
SECTION 10.02. Notice of Redemption; Partial Redemptions......................................90
SECTION 10.03. Payment of Securities Called for Redemption....................................91
SECTION 10.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption..............................................................92
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant
Defeasance............................................................................92
SECTION 11.02. Legal Defeasance and Discharge.................................................92
SECTION 11.03. Covenant Defeasance............................................................93
SECTION 11.04. Conditions to Legal or Covenant Defeasance.....................................93
SECTION 11.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions..............................................95
SECTION 11.06. Repayment to the Company.......................................................96
SECTION 11.07. Reinstatement..................................................................96
ARTICLE 12
MISCELLANEOUS PROVISIONS
SECTION 12.01. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability..............................................97
SECTION 12.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders...............................................................................97
SECTION 12.03. Successors and Assigns of Company Bound by Indenture...........................97
SECTION 12.04. Notices and Demands on Company, Trustee and Holders............................97
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SECTION 12.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein....................................................98
SECTION 12.06. Payments Due on Saturdays, Sundays and Holidays................................99
SECTION 12.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.................................................................99
SECTION 12.08. New York Law to Govern.........................................................99
SECTION 12.09. Third Party Beneficiaries......................................................99
SECTION 12.10. Counterparts.................................................................100
SECTION 12.11. Effect of Headings............................................................100
EXHIBIT A. Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Regulation S.........................................................................A-1
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 15, 1998
Trust Indenture Indenture
Act Section Section
(S) 310 (a) (1) ................................... 5.09
(a) (2) ................................... 5.09
(b) ....................................... 5.10
(S) 312 (a) ....................................... 3.06
(S) 313 (a) ....................................... 3.07
(S) 314 (a) ....................................... 12.04
(c) (1) ................................... 12.05
(c) (2) ................................... 12.05
(e) ....................................... 12.05
(S) 315 (b) ....................................... 5.06
(S) 316 (a) (last
sentence) ............................. 1.01 ("Outstanding")
(a) (1) (A) ............................... 4.02, 4.05
(a) (1) (B) ............................... 4.04
(b) ....................................... 4.07
(c) ....................................... 6.02
(S) 317 (a) (1) ................................... 4.08
(a) (2) ................................... 4.09
(b) ....................................... 3.04
(S) 318 (a) ....................................... 12.07
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
vi
THIS INDENTURE, dated as of July 15, 1998 between Republic Group
Incorporated, a Delaware corporation (the "COMPANY"), and UMB BANK, N.A. (the
"TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issue of its 9.50% Senior
Subordinated Notes due 2008 (the "SECURITIES") and, to provide, among other
things, for the authentication, delivery and administration thereof, the Company
has duly authorized the execution and delivery of this Indenture; and
WHEREAS, the Securities and the Trustee's certificate of authentication
shall be in substantially the following form:
[FORM OF FACE OF SECURITY]
No. $
[CUSIP][CINS]
Republic Group Incorporated
9.50% Senior Subordinated Note Due 2008
Republic Group Incorporated, a Delaware corporation (the "COMPANY"),
for value received hereby promises to pay to _______________________________ or
registered assigns the principal sum of ____________ Dollars at the Company's
office or agency for said purpose in the City of New York on July 15, 2008, by
check or draft in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts, and to pay interest, semi-annually on January 15 and July 15 (each an
"INTEREST PAYMENT DATE") of each year, commencing with January 15, 1999, on said
principal sum by check or draft in like coin or currency at the rate per annum
set forth above at said office or agency from the most recent Interest Payment
Date to which interest on the Securities has been paid or duly provided for,
unless the date hereof is a date to which interest on the Securities has been
paid or duly provided for, in which case from the date of this Security, or, if
no interest on the Securities [or on the Securities for which these Securities
were exchanged pursuant to the Exchange Offer]1 has been paid or duly provided
for, from July 15, 1998. Notwithstanding the foregoing, if the date hereof is
after January 1 or July 1 (each an "INTEREST RECORD DATE"), as the case may be,
and before the immediately following Interest Payment Date, this Security shall
bear interest from such Interest Payment Date; provided, that if the Company
shall default in the
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/1/To be included in Exchange Securities.
payment of interest due on such Interest Payment Date then this Security shall
bear interest from the next preceding Interest Payment Date to which interest on
the Securities has been paid or duly provided for. The interest so payable on
any Interest Payment Date will, except as otherwise provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
Security is registered at the close of business on the Interest Record Date
preceding such Interest Payment Date whether or not such day is a business day;
provided that interest may be paid, at the option of the Company, by mailing a
check therefor payable to the registered holder entitled thereto at such
holder's last address as it appears on the Security register or by electronic
transfer, in immediately available funds, to such bank or other entity in the
continental United States as shall be designated in writing by such holder
(which written designation shall include the name, address and ABA routing
number of the receiving bank and the name, number and contact person related to
the account to be credited at such receiving bank) prior to the relevant
Interest Record Date and shall have appropriate facilities for such purpose.
Interest, other than default interest, on the Securities will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by the Trustee acting under
the Indenture.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
REPUBLIC GROUP INCORPORATED
By:
------------------------------------
Name:
Title:
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[FORM OF REVERSE OF SECURITY]
Republic Group Incorporated
9.50% Senior Subordinated Note Due 2008
This Security is one of a duly authorized issue of debt securities of
the Company, limited to the aggregate principal amount of $100,000,000 (except
as otherwise provided in the Indenture mentioned below), issued or to be issued
pursuant to an indenture dated as of July 15, 1998 (the "INDENTURE"), duly
executed and delivered by the Company to UMB Bank, N.A. as Trustee (herein
called the "TRUSTEE"). Reference is hereby made to the Indenture and all
indentures supplemental thereto for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders (the words "HOLDERS" or "HOLDER" meaning the registered
holders or registered holder) of the Securities.
This Security will bear interest until final maturity at a rate per
annum shown above, except as provided in the next paragraph. The Company will
pay interest on overdue principal of, premium, if any, and to the extent lawful,
interest on overdue installments of interest, at a 9.50% rate per annum based on
a year of 360 days and actual days elapsed.
[In the event that (i) the Exchange Offer Registration Statement (as
defined in the Indenture) relating to the Exchange Offer (as defined in the
Indenture) is not filed with the Commission (as defined in the Indenture) on or
prior to the date that is 60 days after the Closing Date (as defined in the
Indenture), (ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the date that is 120 days after the Closing Date, or
(iii) the Exchange Offer is not consummated or a Shelf Registration Statement
(as defined in the Indenture) with respect to resale of this Security is not
declared effective on or prior to the date that is 150 days after the Closing
Date (each such event referred to in clauses (i) through (iii), a "REGISTRATION
DEFAULT"), then the Company will pay additional interest (in addition to the
interest otherwise due hereon) ("ADDITIONAL INTEREST") to the holder during the
first 90-day period immediately following the occurrence of each such
Registration Default in an amount equal to 0.25% per annum for any and all
Registration Defaults. The amount of interest will increase by an additional
0.25% per annum for each subsequent 90- day period until such Registration
Default is cured, up to a maximum amount of additional interest of 1.00% per
annum for any and all Registration Defaults. Such additional interest will cease
accruing with respect to any Registration Default when such Registration Default
has been cured. The Company shall pay amounts due in respect of Additional
Interest on each Interest Payment Date (or, if the Company
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shall default in the payment of interest on any Interest Payment Date, on the
date such interest is otherwise paid as provided in the Indenture).]2
[There shall also be payable in respect of this Security all Additional
Interest that may have accrued on the Security for which this Security was
exchanged (as defined in such Security) pursuant to the Exchange Offer, such
Additional Interest to be calculated in accordance with the terms of such
Security and payable at the same time and in the same manner as periodic
interest on this Security.]3
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all the Securities may be declared
due and payable, in the manner and with the effect, and subject to the
conditions, provided in the Indenture. The Indenture provides that in certain
events such declaration and its consequences may be waived by the holders of a
majority in aggregate principal amount of the Securities then outstanding and
that, prior to any such declaration, such holders may waive any past default
under the Indenture and its consequences except a default in the payment of
principal of, premium, if any, or interest on any of the Securities. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Security and any Security which may be issued
in exchange or substitution herefor, whether or not any notation thereof is made
upon this Security or such other Securities.
The Indenture permits the Company and the Trustee, with the consent of
the holders of at least a majority in aggregate principal amount of the
Securities at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Securities; provided that without the consent of each holder affected, no
such supplemental indenture shall (i) reduce the principal amount of Securities
whose holders must consent to an amendment, supplement or waiver, (ii) reduce
the principal of or change the fixed maturity of any Security or alter the
provisions with respect to the redemption of the Securities (other than
provisions relating to the covenants described in Sections 3.10 and 3.17 in the
Indenture), (iii) reduce the rate of or change the time for payment of interest
on any Security, (iv) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest on, the Securities (except a
rescission of acceleration of the Securities by the holders of at least a
majority in aggregate principal amount
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/2/To be included in Securities not Exchange Securities.
/3/To be included in Exchange Securities.
5
thereof and a waiver of the payment default that resulted from such
acceleration), (v) make any Security payable in money other than that stated in
the Securities, (vi) make any change in the provisions of the Indenture relating
to waivers of past Defaults or the rights of holders of Securities to receive
payments of principal of, premium, if any, or interest on the Securities, (vii)
waive a redemption payment with respect to any Security (other than a payment
required by one of the covenants described in Sections 3.10 and 3.17 in the
Indenture), (viii) modify the ranking or priority of the Securities or modify
the definition of Senior Debt or Designated Senior Debt or amend or modify the
subordination provisions of the Indenture in any manner adverse to the holders
or (ix) make any change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any holder of
Securities, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for the assumption of the Company's obligations to holders of
Securities in the case of a transaction described in Section 8.01, to make any
change that would provide any additional rights or benefits to the holders of
Securities or that does not adversely affect the legal rights under the
Indenture of any such holder, or to comply with requirements of the Commission
(as defined in the Indenture) in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act (as defined in the Indenture).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered Securities without
coupons in denominations of $1,000 and any multiple of $1,000.
At the office or agency of the Company referred to on the face hereof
and in the manner and subject to the limitations provided in the Indenture,
Securities may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations.
Upon due presentment for registration of transfer of this Security at
the above-mentioned office or agency of the Company, a new Security or
Securities of authorized denominations, for a like aggregate principal amount,
will be issued to the transferee as provided in the Indenture. No service charge
shall be made against the holder for any such transfer, but the Company may
require payment of a sum
6
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Securities may be redeemed at the option of the Company as a whole,
or from time to time in part, on any date on or after July 15, 2003, upon
mailing a notice of such redemption not less than 30 nor more than 60 days prior
to the date fixed for redemption to the holders of Securities to be redeemed,
all as provided in the Indenture, at the following redemption prices (expressed
in percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption:
If redeemed during the twelve-month period beginning July 15,
Year Percentage
2003............................................. 104.750%
2004.............................................. 103.167%
2005............................................. 101.583%
2006 and thereafter............................... 100.000%
provided that if the date fixed for redemption is an Interest Payment Date, then
the interest payable on such date shall be paid to the holder of record on the
next preceding Interest Record Date.
In addition, prior to July 15, 2001, the Company may redeem up to 35% of
the principal amount of the Notes with the net cash proceeds received by the
Company from one or more Public Equity Offerings, at a redemption price of
109.5% of the principal amount thereof, plus accrued and unpaid interest to the
date fixed for redemption (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on an Interest Payment
Date that is on or prior to the redemption date); provided, however, that at
least 65% of the aggregate principal amount of the Notes originally issued
remains outstanding immediately after any such redemption (excluding any
Securities owned by the Company or any of its Affiliates). Notice of redemption
pursuant to this paragraph must be mailed to holders of Securities not later
than 60 days following the consummation of such Public Equity Offering.
Subject to payment by the Company of a sum sufficient to pay the amount
due on redemption, interest on this Security (or portion hereof if this Security
is redeemed in part) shall cease to accrue upon the date duly fixed for
redemption of this Security (or portion hereof if this Security is redeemed in
part).
7
Upon a Change of Control (as defined in the Indenture), any holder of
Securities will have the right to cause the Company to purchase the Securities
of such holder, in whole or in part in integral multiples of aggregate principal
amount of $1,000, at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to any Change of
Control Payment Date, as provided in, and subject to the terms of the Indenture.
All amounts owed under and in respect of this Security are subordinated
in right of payment, to the extent and in the manner provided in Article 9 of
the Indenture, to the prior payment in full in cash of all amounts owed under
and in respect of all Senior Debt, and the subordination of the Securities is
for the benefit of all holders of all Senior Debt, whether outstanding on the
Closing Date or incurred thereafter. The Company agrees, and each holder by
accepting a Security agrees, to the subordination.
The Company, the Trustee, and any authorized agent of the Company or
the Trustee, may deem and treat the registered holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or the Trustee or any authorized agent of the Company or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and none of the Company the
Trustee nor any authorized agent of the Company or the Trustee shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Security, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company (or any subsidiary
thereof) or of any successor corporation, either directly or through the Company
(or any subsidiary thereof) or any successor corporation, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
The Indenture is hereby incorporated by the reference and to the extent
of any variance between the provisions hereof and the Indenture, the Indenture
shall control.
This Security shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except as may otherwise be required by mandatory
provisions of law.
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
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This is one of the Securities described in the within-mentioned Indenture.
UMB BANK, N.A.,
as Trustee
By:
---------------------------------
Authorized Signatory
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto Insert Taxpayer Identification No.
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ____________________ attorney to transfer said Security on the
books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
PERMANENT OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
two years after the later of the original issuance of this Security or the last
date on which this Security was held by the Company or an Affiliate of the
Company, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
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[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Security
and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
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NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "QUALIFIED
INSTITUTIONAL BUYER" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
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NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 3.10 or Section 3.17 of the Indenture, check the Box: o
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 3.10 or Section 3.17 of the Indenture, state the amount:
$______________.
Date:
----------------
Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
-------------------------
[Name of Eligible Guarantor Institution, as defined by
Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended, or any similar rule which Trustee deems
applicable.]
12
AND WHEREAS, all things necessary to make the Securities, when executed
by the Company and authenticated and delivered by the Trustee as in the
Indenture provided, the valid, binding and legal obligations of the Company and
to constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with GAAP
(whether or not such is indicated herein). 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. The terms
defined in this Article include the plural as well as the singular.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
13
"ACQUIRED SUBSIDIARY DEBT" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
except to the extent such Indebtedness was incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person, except to the
extent such Lien was created or incurred in connection with, or in contemplation
of, such acquisition.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"AFFILIATE TRANSACTION" has the meaning provided in Section 3.15.
"AGENT MEMBERS" has the meaning provided in Section 2.07(a).
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition
of any assets (including, without limitation, by way of a sale and leaseback)
other than the disposition of inventory in the ordinary course of business (it
being understood that dispositions of inventory pursuant to long-term supply
agreements constitute the ordinary course of business); provided that the sale,
lease, conveyance or other disposition of all or substantially all of the
property or assets of the Company will be governed by Section 3.17 and/or
Article 8 and not by the provisions of Section 3.10, and (ii) the issuance or
sale by the Company or any of its Restricted Subsidiaries of Equity Interests of
any of the Company's Restricted Subsidiaries, in the case of either clause (i)
or (ii), whether in a single transaction or a series of related transactions (a)
that have a fair market value in excess of $1 million or (b) for net proceeds in
excess of $1 million. Notwithstanding the foregoing: (a) a transfer of assets by
the Company to a Restricted Subsidiary or by a Restricted Subsidiary to the
Company or another Restricted Subsidiary or (b) an issuance of Equity Interests
by a Restricted Subsidiary to the Company or to another Restricted Subsidiary,
in each case, will not be deemed to be an Asset Sale.
"ASSET SALE OFFER PRICE" has the meaning provided in Section 3.10.
14
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law 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, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, 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 EQUIVALENTS" means, at any time, (i) any evidence of Indebtedness
with a maturity of 180 days or less 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 of America is
pledged in support thereof), (ii) repurchase obligations for investments of the
type described in clause (i) for which delivery of the investment is made
against payment, (iii) demand or time deposits, bankers' acceptances and
certificates of deposit or acceptances with a maturity of 180 days or less of
any financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than
$300,000,000, and (iv) commercial paper with a maturity of 180 days or less
issued by a corporation (except any Affiliate of the Company or Subsidiary of
the Company) organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P and at least P-1 by Xxxxx'x.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition, in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Company and its Restricted Subsidiaries taken as a whole to any Person or
group (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) other than Xxxx Xxxxxxx, his spouse, his descendants and their spouses,
trusts and estates of which any of them are primary beneficiaries and any
entities of which any of them are holders of a majority of the equity
securities, (ii) the acquisition by any Person or group (as defined above) of a
direct or indirect interest in more than 50% of the voting power of the voting
stock of the Company, by way of merger or consolidation or otherwise, other
than Xxxx Xxxxxxx, his spouse, his descendants and their spouses, trusts and
15
estates of which any of them are primary beneficiaries and any entities of which
any of them are holders of a majority of the equity securities or (iii) the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"CLOSING DATE" means July 15, 1998.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act.
"CONSOLIDATED EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
asset sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) any non-cash charges (to the extent such
charges were deducted in computing such Consolidated Net Income), except for any
non-cash charges that represent accruals of, or reserves for, cash disbursements
to be made in any future accounting period, plus (iii) provision for taxes based
on income or profits of such Person and its Restricted Subsidiaries for such
period, to the extent such provision for taxes was included in computing such
Consolidated Net Income, plus (iv) the Fixed Charges of such Person and its
Restricted Subsidiaries for such period, to the extent that such Fixed Charges
were deducted in computing such Consolidated Net Income, plus (v) depreciation,
amortization and depletion (including amortization of goodwill and all other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and depletion were
deducted in computing such Consolidated Net Income, in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the amounts referred to in clauses (i) through (v) above as they
relate to a Restricted Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated EBITDA only to the extent (and
in same proportion) that the Net Income of such Restricted 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 paid
as a dividend or similar distribution to the Company by such Restricted
Subsidiary or by a Restricted Subsidiary which is the parent of such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to that
Restricted 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 Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with
16
GAAP; provided that (i) the Net Income of any Person that is not Restricted
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 Restricted Subsidiary thereof, (ii) the Net
Income of any Restricted Subsidiary shall be excluded to the extent that the
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted to be made to the
Company by such Restricted Subsidiary or by a Restricted Subsidiary which is the
parent of such Restricted Subsidiary without any prior approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) solely for the purpose of calculating the amount of
Restricted Payments that may be made pursuant to clause (c) of the first
paragraph of Section 3.08, 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 Restricted 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),
less all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern business made
in accordance with GAAP as a result of the acquisition of such business)
subsequent to the date of the Indenture in the book value of any asset owned by
such Person or a consolidated Restricted Subsidiary of such Person, and
excluding the cumulative effect of a change in accounting principles, all as
determined in accordance with GAAP.
"CONTINUING DIRECTOR" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the Indenture, (ii) was nominated for election
or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election or (iii) was nominated for election or elected to such
Board of Directors by the Company.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000.
17
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees, and
their respective successors.
"DESIGNATED SENIOR DEBT" means (i) so long as the New Credit Facility
is outstanding, all Indebtedness under the New Credit Facility and (ii)
thereafter, any other Senior Debt permitted under the Indenture the principal
amount of which is $5 million or more and that has been designated by the
Company as "Designated Senior Debt."
"DISQUALIFIED STOCK" means any Capital Stock 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 redeemable at
the option of the holder thereof, in whole or in part, on or prior to the stated
date on which the Securities mature.
"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).
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 4.01 which shall have continued for the period of time, if any, therein
designated.
"EXCESS PROCEEDS" has the meaning provided in Section 3.10.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE OFFER" means the exchange offer by the Company of Exchange
Securities for Securities pursuant to the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a registration statement
relating to an Exchange Offer on an appropriate form and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"EXCHANGE SECURITIES" means any securities of the Company to be offered
to Securityholders in exchange for Securities pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Exchange Securities containing terms
identical to the Securities for which they are exchanged (except that (i)
interest
18
thereon shall accrue from the last date on which interest was paid on the
Securities or, if no such interest has been paid, from the date of issuance of
the Securities and (ii) the Exchange Securities will contain the alternative
third paragraph appearing on the reverse of the Securities in the form recited
above and will not contain terms with respect to transfer restrictions).
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the New Credit Facility)
in existence on the date of the Indenture, until such amounts are repaid,
including all reimbursement obligations with respect to letters of credit
outstanding as of the date of the Indenture (other than letters of credit issued
pursuant to the New Credit Facility).
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person for any
period, the ratio of (i) the Consolidated EBITDA of such Person for such period
to (ii) the Fixed Charges of such Person for such period. In the event that the
Company or any of its Restricted Subsidiaries incurs, assumes, Guarantees or
redeems any Indebtedness (other than 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 by giving pro forma effect to such
incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock (and the application of the proceeds
of any such incurrence of Indebtedness or issuance of preferred stock), as if
the same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the Company or any of its Restricted
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 (ii) the Consolidated EBITDA and 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.
"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 Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash 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 letters of credit or bankers' acceptance
19
financings, and net payments (if any) pursuant to Hedging Obligations) and (ii)
the consolidated interest expense of such Person and its Restricted 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
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries (whether or not such Guarantee or Lien is called
upon) and (iv) the product of (a) all cash dividend payments (and non-cash
dividend payments in the case of a payor that is a Restricted Subsidiary) on any
Disqualified Stock of the Company and on any series of preferred stock of any
Restricted Subsidiary of the Company, times (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 rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
"FLUOR XXXXXX AGREEMENT" means that certain Agreement for Engineering,
Procurement and Construction among the Company, Republic Paperboard Company and
Fluor Xxxxxx, Inc. dated as of June 25, 1998 as further amended, modified,
extended, renewed or replaced in whole or in part, from time to time.
"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 entities as have been approved by a significant segment of the accounting
profession, as in effect on the Issue Date.
"GLOBAL SECURITIES" has the meaning provided in Section 2.04.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"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 agree ments in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) foreign exchange
contracts or currency swap agreements, (iii) other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency values and (iv) other agreements or
20
arrangements designed to protect such Person against fluctuations in raw
material prices.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms means the registered holder of any Security.
"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 agreement 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, 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 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, the Guarantee by such Person of any indebtedness of any other Person;
it being understood that the obligations incurred under the Fluor Xxxxxx
Agreement of the Company or any Restricted Subsidiary in connection with the
Xxxxxx Mill shall not constitute Indebtedness.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means, with respect to any
Person, (i) any insolvency or bankruptcy or similar case or proceeding, or any
reorganization, receivership, liquidation, dissolution or winding up of such
Person, whether voluntary or involuntary, or (ii) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities of such Person.
"INTEREST PAYMENT DATE" means each semiannual interest payment date on
January 15 and July 15 of each year, commencing January 15, 1999.
"INTEREST RECORD DATE" for the Interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the January1 or
July 1 (whether or not a Business Day) as the case may be, next preceding such
Interest Payment Date.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances or capital contributions, purchases or other acquisitions for
consideration of Indebtedness,
21
Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
For purposes of the definition of "Unrestricted Subsidiary" and Section 3.08,
(i) "Investment" shall include the fair market value of the assets (net of
liabilities) of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary and shall exclude the fair
market value of the assets (net of liabilities) of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary and (ii) any property transferred to or from any Person shall be
valued at its fair market value at the time of such transfer, in each case as
determined in good faith by the Board of Directors of the Company.
"ISSUE DATE" means the original issue date of the Securities.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, 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 with respect to any such lien, pledge, charge or
security interest).
"MOODY'S" means Xxxxx'x Investors Services, Inc. and its successors.
"NET INCOME" means, with respect to any Person for such period, the net
income (loss) of any such Person for such period, determined in accordance with
GAAP, 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) other than the disposition of inventory in the ordinary
course of business (it being understood that dispositions of inventory pursuant
to long-term supply agreements constitute the ordinary course of business) or
(b) the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain or
loss, together with any related provision for taxes on such extraordinary or
nonrecurring gain or loss.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of 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) and any
other expenses incurred or to be incurred by the Company or a Restricted
Subsidiary as a direct result of the sale of such assets (including, without
limitation, severance, relocation, lease termination
22
and other similar expenses), taxes actually paid or payable as a result thereof,
payments made to retire Indebtedness where payment of such Indebtedness is
required in connection with such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"NEW CREDIT FACILITY" means that certain Credit Agreement, expected to
be dated as of July 15, 1998, by and among the Company and Xxxxxx Guaranty Trust
Company of New York, as Syndication Agent, NationsBank, N.A., as Administrative
Agent, and the other lenders that are parties thereto (or, if such Credit
Agreement is not entered into with Xxxxxx Guaranty Trust Company of New York and
NationsBank, N.A., then a similar senior credit facility entered into among the
Company, any one or more of its Subsidiaries and one or more banks or other
lenders), including any related notes, collateral documents, instruments and
agreements executed in connection therewith, and in each case as further
amended, modified, extended, renewed, refunded, replaced or refinanced in whole
or in part, from time to time (including amendments, modifications, extensions,
renewals, refundings, replacements or refinancings which increase the principal
amount of Indebtedness permitted thereunder; provided that any such increase
will not increase the amount of Indebtedness which may be incurred at the time
of such increase pursuant to clause (i) of the second paragraph of Section
3.09).
"NON-RECOURSE DEBT" means Indebtedness of a Subsidiary (i) as to which
neither the Company nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument that
would consti tute Indebtedness of the Company or any of its Restricted
Subsidiaries), or (b) is directly or indirectly liable (as a guarantor or
otherwise) and (ii) no default with respect to which would permit (upon notice,
lapse of time or both) any holder of any other Indebtedness of the Company or
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"NON-U.S. PERSON" means a person who is not a U.S. person, as defined
in Regulation S.
"OBLIGATIONS" means all principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors or the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after the
title "Vice President") of the Company and delivered to the Trustee. Each such
certificate shall
23
comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 12.05.
"OFFSHORE GLOBAL SECURITIES" has the meaning provided in Section 2.04.
"OFFSHORE PHYSICAL SECURITIES" means Securities issued pursuant to
Section 2.01 in exchange for interests in the Offshore Global Security following
the Offshore Securities Exchange Date or pursuant to Section 2.07(b), in each
case in registered form substantially in the form hereinabove recited.
"OFFSHORE SECURITIES EXCHANGE DATE" has the meaning provided in Section
2.04.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Company or who may be other
counsel satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided for in
Section 12.05, and such others as may reasonably be requested by the Trustee, if
and to the extent required hereby.
"OUTSTANDING", when used with reference to Securities, subject to the
provisions of Article 11, means, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside, segregated and held in trust by
the Company (if the Company shall act as its own paying agent),
provided that if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.09 (unless proof satisfactory to the
Trustee and the Company is presented that any of such Securities is
held by a person in whose hands such Security is a legal, valid and
binding obligation of the Company).
24
"PAYMENT DEFAULT" means any failure to pay any scheduled installment of
principal of, premium, if any, or interest on any Indebtedness within the grace
period provided for such payment in the documentation governing such
Indebtedness.
"PERMANENT OFFSHORE GLOBAL SECURITY" has the meaning provided in
Section 2.04.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used solely to extend, refinance, renew, replace, defease
or refund, other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than Indebtedness constituting revolving credit loans under
the New Credit Facility permitted to be incurred under clause (i) of the second
paragraph of Section 3.09), 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 any premiums paid and reasonable fees and expenses incurred
in connection therewith); (ii) such Permitted Refinancing Indebtedness has a
final stated maturity date not earlier than the final stated maturity date of,
and 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 Securities, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Securities on terms at
least as favorable to the Holders of Securities 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 Restricted Subsidiary which is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"POST-PETITION INTEREST" means, with respect to any Indebtedness of any
Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the rate specified in such Indebtedness, whether or not
such interest is an allowed claim enforceable against such Person in a
bankruptcy case under Title 11 of the United States Code.
"PRINCIPAL" wherever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "AND PREMIUM, IF
ANY".
25
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Securities in the form set forth in Section 2.05(a).
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering
of common stock of the Company pursuant to an effective Registration Statement
under the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED EQUITY INTERESTS" means all Equity Interests of the Company
other than Disqualified Stock of the Company.
"REGISTRAR" has the meaning provided in Section 2.06.
"REGISTRATION" means a registered exchange offer for the Securities by
the Company or other registration of the Securities under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of July 15, 1998, between the Company and the Initial
Purchasers and certain permitted assigns specified therein.
"REGISTRATION STATEMENT" means the Registration Statement pursuant to
and as defined in the Registration Rights Agreement.
"REGULATION S" means Regulation S under the Securities Act.
"REORGANIZATION SECURITIES" means, with respect to any Insolvency or
Liquidation Proceeding involving the Company, Capital Stock or any other
securities of the Company as reorganized or readjusted (or Capital Stock or any
other securities of any other Person provided for by a plan of reorganization or
readjustment) that are subordinated, at least to the same extent as the
Securities, to the payment of all outstanding Senior Debt after giving effect to
such plan of reorganization or readjustment; provided, however, that (i) the
Securities shall not be treated in any case or proceeding or other event
described above as part of the same class of claims as the Senior Debt or any
class of claim on a parity with or senior to the Senior Debt for any payment or
distribution, (ii) such securities are subordinated at least to the same extent
as the Securities to Senior Debt of the Company and any securities issued in
exchange for such Senior Debt and (iii) such securities are authorized by an
order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy, insolvency or similar law that gives
effect to the subordination of the Securities to Senior Debt in a manner and
with an effect which would be required if this proviso were not included in this
paragraph; provided
26
further that the Senior Debt is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment and issuing such
securities.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any
vice president (whether or not designated by numbers or words added before or
after the title "vice president"), any corporate trust officer, any assistant
corporate trust officer, any assistant vice president, any assistant secretary,
any assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such corporate trust officers, respectively, or
to whom any corporate trust matter is referred because of his or her knowledge
of and familiarity with the particular subject.
"RESTRICTED INVESTMENT" means any Investment by the Company or any
Restricted Subsidiary in any Person other than (i) an Investment in the Company
or a Restricted Subsidiary or in any Person that, as a result of such
Investment, becomes a Restricted Subsidiary or will be merged or consolidated
with or into or will transfer or convey all or substantially all of its assets
to, the Company or a Restricted Subsidiary and (ii) Temporary Cash Investments.
"RESTRICTED SUBSIDIARY" means any Subsidiary of any Person other than
an Unrestricted Subsidiary of such Person and any Subsidiary of an Unrestricted
Subsidiary of such Person.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY" or "SECURITIES" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture. For all purposes
of this Indenture, the term "Securities" shall include any Exchange Securities
to be issued and exchanged for any Securities pursuant to the Registration
Rights Agreement and this Indenture and, for purposes of this Indenture, all
Securities and Exchange Securities shall vote together as one series of
Securities under this Indenture.
"SECURITY REGISTER" has the meaning provided in Section 2.06.
"SENIOR DEBT" means (i) all Indebtedness of the Company under the New
Credit Facility, including principal of, premium, if any, and interest on such
Indebtedness and all other amounts due on or in connection with such
Indebtedness including all charges, fees and expenses, (ii) all other
Indebtedness of the Company,
27
including principal of, premium, if any, and interest on such Indebtedness,
unless the instrument under which such Indebtedness is created, incurred,
assumed or Guaranteed expressly provides that such Indebtedness is not senior or
superior in right of payment to the Securities, and all renewals, extensions,
modifications, amendments or refinancings thereof and (iii) all interest on any
Indebtedness referred to in clause (i) and (ii) accruing during the pendency of
any bankruptcy or insolvency proceeding whether or not allowed or allowable
thereunder. Notwithstanding the foregoing, Senior Debt shall not include (a)
Subordinated Debt of the Company; provided, however, that no Indebtedness shall
be deemed to be Subordinated Debt of the Company solely by reason of such other
Indebtedness being secured and such Indebtedness not being secured, (b) the
Securities, (c) any Indebtedness of the Company to any of its Restricted
Subsidiaries, (d) any Indebtedness which, when incurred and without respect to
any election under Section 1111 (b) of the Bankruptcy Code, is without recourse
to the Company, (e) any Indebtedness of the Company, to the extent not permitted
by Section 3.09, (f) any Indebtedness to any employee of the Company or any of
its Restricted Subsidiaries, (g) any liability for taxes owed or owing by the
Company and (h) Trade Payables.
"SHELF REGISTRATION STATEMENT" means a Shelf Registration Statement of
the Company pursuant to and as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any
Subsidiary that, together with its Subsidiaries, (i) accounted for more than 10%
of the consolidated revenues of the Company and its consolidated Subsidiaries or
(ii) was the owner of more than 10% of the consolidated assets of the Company
and its consolidated Subsidiaries, all as set forth on the most recently
available audited financial statements of the Company.
"STOCKHOLDERS' EQUITY" means, with respect to any Person as of any
date, the stockholders' equity of such Person determined in accordance with GAAP
as of the date of the most recent available internal financial statements of
such Person, and calculated on a pro forma basis to give effect to any
acquisition or disposition by such Person consummated or to be consummated since
the date of such financial statements and on or prior to the date of such
calculation.
"SUBORDINATED DEBT" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter incurred) which is by its terms
expressly subordinate or junior in right of payment to the Securities.
"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
28
time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof) and (ii) any
partnership (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 one or more Subsidiaries of such Person (or
any combination thereof). Unrestricted Subsidiaries shall not be included in the
definition of Subsidiary for any purposes of the Indenture (except, as the
context may otherwise require, for purposes of the definition of "Unrestricted
Subsidiary"). Unless otherwise specified or the context otherwise requires,
"Subsidiary" means a Subsidiary of the Company.
"TEMPORARY CASH INVESTMENT" means any of the following: (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 of America is pledged in support thereof, (ii)
time deposit accounts, bankers' acceptances, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by any office located in the United States of America of a bank or trust
company which is organized or licensed under the laws of the United States of
America or any state thereof and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million and has
outstanding debt which is rated "P-1" (or higher) by Moody's or "A-1" (or
higher) by S&P or any money-market fund sponsored by a registered broker dealer
or mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with an office located in the United States of America of a
bank or trust company meeting the qualifications described in clause (ii) above,
(iv) commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company)
organized under the laws of the United States of America or any state thereof
with a rating, at the date of acquisition, of "P-1" (or higher) by Moody's or
"A-1" (or higher) by S&P, (v) securities with maturities of six months or less
from the date of acquisition issued or fully and unconditionally guaranteed by
any state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "P-1" (or
higher) by Moody's or "A-1" (or higher) by S&P and (vi) money market funds which
invest substantially all of their assets in securities described in the
preceding clauses (i) through (v).
"TEMPORARY OFFSHORE GLOBAL SECURITY" has the meaning provided in
Section 2.04.
"TRADE PAYABLES" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services.
29
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was originally
executed, and "TIA", when used in respect of an indenture supplemental hereto,
means such Act as in force at the time such indenture supplemental hereto
becomes effective.
"TRUSTEE" means the entity identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"U.S. GLOBAL SECURITY" has the meaning provided in Section 2.04.
"U.S. PERSON" has the meaning provided in Regulation S.
"U.S. PHYSICAL SECURITIES" means Securities issued in the form of
permanent certificated Securities in registered form in substantially the form
hereinabove recited.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary that is designated by
the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to
a Board Resolution, but only if such Subsidiary (i) has no Indebtedness other
than Non-Recourse Debt, (ii) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company, (iii) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results and (iv) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, an Unrestricted Subsidiary shall not
cease to qualify as an Unrestricted Subsidiary if the Company Guarantees
Indebtedness of such Unrestricted Subsidiary and such Guarantee is a Restricted
Investment which is permitted by Section 3.08.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted under the covenant described in Section 3.08. If at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted
30
Subsidiary it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of the Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
(and, if such Indebtedness is not permitted to be incurred as of such date under
the Indenture, the Company shall be in Default under the Indenture). The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
the Indenture, and (ii) no Default or Event of Default would be in existence
following such designation.
"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 products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment 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.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Bankruptcy Law".................................... 4.01
"Change of Control Offer"........................... 3.17
"Change of Control Payment"......................... 3.17
"Change of Control Payment Date".................... 3.17
"Commencement Date"................................. 3.10
"Covenant Defeasance"............................... 11.03
"Custodian"......................................... 4.01
"incur"............................................. 3.09
"Legal Defeasance".................................. 11.02
"Offer Amount"...................................... 3.10
"Offer Period"...................................... 3.10
"Permitted Business" ............................... 3.13
"Purchase Date"..................................... 3.10
"Purchase Price".................................... 3.10
"Restricted Payments"............................... 3.08
"Secured Indebtedness" ............................. 3.11
31
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.01. Authentication and Delivery of Securities. Upon the
execution and delivery of this Indenture, or from time to time thereafter,
Securities (including Exchange Securities) in an aggregate principal amount not
in excess of the amount specified in the form of Security hereinabove recited
(except as otherwise provided in Section 2.09) may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Securities to or upon the
written order of the Company, signed by its Chairman of the Board of Directors
or any Vice President (whether or not designated by a number or numbers or a
word or words added before or after the title "Vice President") without any
further action by the Company.
SECTION 2.02. Execution of Securities. The Securities shall be signed
on behalf of the Company by its Chairman of the Board of Directors or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President"). Such signatures may be the
manual or facsimile signatures of the present or any future such officers.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such officer.
SECTION 2.03. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinabove recited, executed by the Trustee by manual signature of one of its
authorized signatories, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the Holder is entitled to the benefits of this Indenture.
SECTION 2.04. Form, Denomination and Date of Securities; Payments of
Interest. The Securities and the Trustee's certificates of authentication shall
be substantially in the form recited above; provided that Exchange Securities
(i) shall
32
contain the alternative third paragraph appearing on the reverse of the
Securities in the form recited above and (ii) shall not contain terms with
respect to transfer restrictions. The Securities shall be issuable in
denominations provided for in the form of Security recited above. The Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Company executing the same may
determine with the approval of the Trustee.
Any of the Securities may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, including those required by Section 2.05, or
with the rules of any securities market in which the Securities are admitted to
trading, or to conform to general usage.
Each Security shall be dated the date of its authentication, shall bear
interest from the applicable date and shall be payable on the dates specified on
the face of the form of Security recited above.
Securities offered and sold in reliance on Section 4(2) of and Rule
144A under the Securities Act shall be issued initially in the form of one or
more permanent global Securities in registered form, substantially in the form
hereinabove recited (the "U.S. GLOBAL SECURITY"), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as herein provided. The aggregate principal amount of the U.S.
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Security in registered form substantially in the form hereinabove recited (the
"TEMPORARY OFFSHORE GLOBAL SECURITY") deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as provided herein. At any time on and after August 24, 1998 (the
"OFFSHORE SECURITIES EXCHANGE DATE"), a single permanent global Security in
registered form substantially in the form hereinabove recited without the
Private Placement Legend (the "PERMANENT OFFSHORE GLOBAL SECURITY"; and together
with the Temporary Offshore Global Security, the "OFFSHORE GLOBAL SECURITIES")
duly executed by the Company and authenticated by the Trustee as provided herein
shall be deposited with the Trustee, as custodian for the Depositary, and the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Temporary
33
Offshore Global Security in an amount equal to the principal amount of the
beneficial interest in the Temporary Offshore Global Security transferred.
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the "PHYSICAL SECURITIES". The U.S.
Global Security and the Offshore Global Security are sometimes referred to
herein as the "GLOBAL SECURITIES".
The person in whose name any Security is registered at the close of
business on any Interest Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to the Interest Record Date and prior to such Interest Payment Date,
except if and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in which case such defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, shall be paid to the persons in whose names outstanding Securities are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of such payment) established
by notice given by mail by or on behalf of the Company to the holders of
Securities not less than 15 days preceding such subsequent record date.
SECTION 2.05. Restrictive Legends. (a) Unless and until a Security is
exchanged for an Exchange Security in connection with an effective Registration
pursuant to the Registration Rights Agreement, the U.S. Global Security,
Temporary Offshore Global Security, each U.S. Physical Security and each
Offshore Physical Security issued pursuant to Section 2.07(b), shall bear the
following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY
MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE
SECOND ANNIVERSARY OF THE LATER OF THE DATE OF ORIGINAL ISSUANCE HEREOF
OR THE SALE HEREOF BY THE COMPANY OR ITS AFFILIATES OR (Y) BY AN
AFFILIATE OF THE COMPANY OR BY ANY HOLDER THAT WAS AN AFFILIATE OF THE
COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED
34
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN
TRANSFERORS PRIOR TO THE EXPIRATION OF THE "DISTRIBUTION COMPLIANCE
PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE
SECURITIES ACT), A CERTIFICATE THAT MAY BE OBTAINED FROM THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902
UNDER) REGULATION S UNDER THE SECURITIES ACT.
(b) Each Global Security, whether or not an Exchange Security, shall
also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN
35
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.06. Registration, Transfer and Exchange. The Securities are
issuable only in registered form. The Company will keep at each office or agency
to be maintained for the purpose as provided in Section 3.02 (the "REGISTRAR") a
register or registers (the "SECURITY REGISTER(s)") in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such Security Register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times
such Security Register or Security Registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any Security at
each such office or agency, the Company shall execute and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities, in each case, in authorized
denominations for a like aggregate principal amount.
A Holder may transfer a Security only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Company the Trustee, and any agent of the Company shall treat the
person in whose name the Security is registered as the owner thereof for all
purposes whether or not the Security shall be overdue, and neither the Company
the Trustee, nor any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Security shall, by acceptance of
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such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book entry system maintained by
the Holder of such Global Security (or its agent) and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book
entry. When Securities are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Securities of other authorized denominations (including an exchange of
Securities for Exchange Securities), the Registrar shall register the transfer
or make the exchange as requested if the requirements for such transactions set
forth herein are met; provided that no exchanges of Securities for Exchange
Securities shall occur until a Registration Statement shall have been declared
effective by the Commission and that any Securities that are exchanged for
Exchange Securities shall be cancelled by the Trustee. To permit registrations
of transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request.
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 exchange or
registration of transfer of Securities (other than any such transfer taxes or
other similar governmental charge payable upon exchanges pursuant to Section
2.11, 7.05 or 11.03) and such payment, if required, shall be paid before any new
Security shall be delivered. No service charge to any Holder shall be made for
any such transaction. In the event that any Holder of a Security fails to
provide a correct taxpayer identification number to the Trustee, the Trustee may
impose a charge against such Holder sufficient to pay any tax or other
governmental charge required to be paid as a result of such failure and the
Trustee may deduct the amount of such tax or other charge from amounts otherwise
payable to such Holder with respect to such Security.
The Company shall not be required to exchange or register a transfer of
(a) any Securities for a period of 15 days next preceding the first mailing of
notice of redemption of Securities to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.07. Book-Entry Provisions for Global Securities. (a) The
U.S. Global Security and Offshore Global Security initially shall (i) be
registered in the name of the Depositary for such Global Securities or the
nominee of such Depositary,
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(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.05.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.08. In addition, U.S. Physical
Securities and Offshore Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Security or the Offshore Global Security, respectively, if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the U.S. Global Security or the Offshore Global Security, as the case may
be, and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default of which the Trustee has actual notice
has occurred and is continuing and the Registrar has received a request from the
Depositary to issue such Physical Securities.
(c) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the U.S. Global Security to beneficial owners pursuant to paragraph
(b) of this Section 2.07, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global Security in
an amount equal to the principal amount of the beneficial interest in the U.S.
Global Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and
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make available for delivery, one or more U.S. Physical Securities of like tenor
and amount.
(e) In connection with the transfer of the entire U.S. Global Security
or Offshore Global Security to beneficial owners pursuant to paragraph (b) of
this Section, the U.S. Global Security or Offshore Global Security, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the U.S. Global Security or Offshore Global Security, as
the case may be, an equal aggregate principal amount of U.S. Physical Securities
or Offshore Physical Securities, as the case may be, of authorized
denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to paragraph (b) or (d) of this Section
shall, except as otherwise provided by paragraph 2.08(e), bear the legend
regarding transfer restrictions applicable to the U.S. Physical Security set
forth in Section 2.05.
(g) Any Offshore Physical Security delivered in exchange for an
interest in the Offshore Global Security pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph 2.08(e), bear the
legend regarding transfer restrictions applicable to the Offshore Physical
Security set forth in Section 2.05.
(h) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.08. Special Transfer Provisions. Unless and until a Security
is exchanged for an Exchange Security in connection with an effective
Registration pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical Security
or an interest in the U.S. Global Security to a QIB (excluding Non-U.S.
Persons):
(i) If the Security to be transferred consists of (x) U.S.
Physical Securities, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the
39
Company and the Registrar in writing, that it is purchasing the
Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a QIB within the meaning of Rule 144A, and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A or (y) an interest in the U.S.
Global Security, the transfer of such interest may be effected only
through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i)
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the U.S.
Physical Securities to be transferred and the Trustee shall cancel the
U.S. Physical Security so transferred.
(b) Transfers of Interests in the Temporary Offshore Global Security.
The following provisions shall apply with respect to registration of any
proposed transfer of interests in the Temporary Offshore Global Security:
(i) The Registrar shall register the transfer of any Security (x)
if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit A hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on
the form of Security stating, or has otherwise advised the Company and
the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance of Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
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(ii) If the proposed transferee is an Agent Member, upon receipt
by the Registrar of the documents referred to in clause (i)(y) above
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S.
Global Security, in an amount equal to the principal amount of the
Temporary Offshore Global Security to be transferred, and the Trustee
shall decrease the amount of the Temporary Offshore Global Security in
a like amount.
(c) Transfers of Interests in the Permanent Offshore Global Security
or Offshore Physical Securities to U.S. Persons. The following provisions shall
apply with respect to any transfer of interests in the Permanent Offshore Global
Security or Offshore Physical Securities to U.S. Persons: The Registrar shall
register the transfer of any such Security without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Security to a Non-U.S.
Person:
(i) Prior to August 24, 1998, the Registrar shall register any
proposed transfer of a Security to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit A hereto from the
proposed transferor.
(ii) On and after August 24, 1998, the Registrar shall register
any proposed transfer to any Non-U.S. Person (x) if the Security to be
transferred is a U.S. Physical Security or an interest in the U.S.
Global Security, upon receipt of a certificate substantially in the
form of Exhibit A from the proposed transferor or (y) if the Security
to be transferred is an Offshore Physical Security or an interest in
the Permanent Offshore Global Security, without requiring any
additional certification.
(iii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
(b) if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Offshore Global Security in an amount equal to the principal
amount of the
41
U.S. Physical Securities or the U.S. Global Security, as the case may
be, to be transferred, and the Trustee shall cancel the Physical
Security, if any, so transferred or decrease the amount of the U.S.
Global Security, as the case may be.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless the requested transfer is after the time
period referred to in Rule 144(k) under the Securities Act (or any successor
provision thereto) as in effect with respect to such transfer, or either (i) the
circumstances contemplated by the fifth paragraph of Section 2.04 or paragraph
(d)(ii) of this Section 2.08 exists or (ii) there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(f) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. The Registrar shall not register a transfer of any Security
unless such transfer complies with the restrictions on transfer of such Security
set forth in this Indenture. In connection with any transfer of Securities, each
Holder agrees by its acceptance of the Securities to furnish the Registrar or
the Company such certifications, legal opinions or other information as either
of them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such certifications, legal opinions or other
information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07(a) or this Section
2.08. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
42
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be apparently destroyed, lost or stolen, the Company in its
discretion may execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and make available for delivery, a new
Security bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and
substitution for the Security so apparently destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to the Company and
the Trustee and any agent of the Company or the Trustee such security or
indemnity as may be required by each of them to indemnify and defend and to save
each of them harmless and, in every case of destruction, loss or theft evidence
to their satisfaction of the apparent destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature, or has been called for redemption in
full, shall become mutilated or defaced or be apparently destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Company and to the Trustee and any agent of the Company or the
Trustee such security or indemnity as any of them may require to save each of
them harmless from all risks, however remote, and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the apparent destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security issued pursuant to the provisions of this
Section by virtue of the fact that any Security is apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the apparently destroyed, lost or stolen Security shall be at any
time enforceable by
43
anyone and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation of Securities. All Securities surrendered
for payment, redemption, registration of transfer or exchange, if surrendered to
the Company or any agent of the Company or the Trustee, shall be delivered to
the Trustee for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall deliver cancelled Securities to the Company. If the Company shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities shall be issuable as
registered Securities without coupons, of any authorized denomination, and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Company shall execute and shall furnish definitive
Securities and thereupon temporary Securities may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Company
for the purpose pursuant to Section 3.02, and the Trustee shall authenticate and
make available for delivery in exchange for such temporary Securities a like
aggregate principal amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 2.12. CUSIP and CINS Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of
44
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as the correctness of such
numbers either as printed on the Securities or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee of any change in the CUSIP numbers or CINS numbers.
ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE.
SECTION 3.01. Payment of Principal and Interest. The Company covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities at the place or places, at
the respective times and in the manner provided in the Securities. Each
installment of interest on the Securities may be paid by mailing checks for such
interest payable to or upon the written order of the holders of Securities
entitled thereto as they shall appear on the registry books of the Company, or
by wire transfer to such holders in immediately available funds, to such bank or
other entity in the continental United States as shall be designated in writing
by such holders (which written designation should include the name, address and
ABA routing number of the receiving bank and the name, number and contact person
related to the account to be credited at the receiving bank) and shall have
appropriate facilities for such purpose, or in accordance with the standard
operating procedures of the Depositary.
SECTION 3.02. Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Company will maintain in the City of New
York, the following: (a) an office or agency where the Securities may be
presented for payment, (b) an office or agency where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) an office or agency where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. The Company hereby
initially designates the Trustee's office located c/o of United Missouri Trust
Company of New York, 0 Xxxxxxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 as the office or agency for each such purpose. In case the Company
shall fail to maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office
or at such New York office of the Trustee.
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SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 3.04. Paying Agents. Whenever the Company shall appoint a
paying agent other than the Trustee, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities (whether such sums
have been paid to it by the Company or by any other obligor on the Securities)
in trust for the benefit of the holders of the Securities or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Company
(or any other obligor on the Securities) to make any payment of the principal of
or interest on the Securities when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause
(b) above.
The Company will, prior to 12:00 noon (New York time) on each due date
of the principal of or interest on the Securities, deposit with the paying agent
(including the Trustee should it be the paying agent), a sum in immediately
available funds, sufficient to pay such principal or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.
If the Company shall act as paying agent, it will, on or before each
due date of the principal of or interest on the Securities, set aside, segregate
and hold in trust for the benefit of the holders of the Securities a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by the Company or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
46
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section are subject to the provisions
of Sections 11.05 and 11.06.
SECTION 3.05. Certificates to Trustee. (a) The Company will deliver to
the Trustee within 90 days after the end of each fiscal year of the Company,
commencing with the fiscal year ending June 30, 1999, a certificate from the
principal executive, financial or accounting officer of the Company as to his or
her knowledge of the Company's compliance with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) and
setting forth the details of any Event of Default or Default known to such
officer and the action which the Company proposes to take with respect thereto.
(b) The Company will deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or a Default, an Officer's
Certificate setting forth the details of such Event of Default or Default, and
the action which the Company proposes to take with respect thereto.
(c) The Company will deliver to the Trustee within 90 days after the
end of each fiscal year of the Company a written statement by the Company's
independent public accountants stating whether, in connection with their audit
examination, any Default has come to their attention and, if such a Default has
come to their attention, specifying the nature and period of the existence
thereof.
SECTION 3.06. Securityholders' Lists. If and so long as the Trustee
shall not be the Registrar, the Company will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of the Securities pursuant to Section 312 of
the Trust Indenture Act (a) semi-annually not more than 15 days after each
Interest Record Date as of such Interest Record Date, and (b) at such other
times as the Trustee may request in writing, within thirty days after receipt by
the Company of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 3.07. Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each July 1 following
the date of this Indenture deliver to Holders a brief report, dated as of such
July 1, which complies with the provisions of such Section 313(a).
47
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 3.08. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any distribution on account
of the Company's or any Restricted Subsidiary's Equity Interests (other than (x)
dividends or distributions payable in Qualified Equity Interests of the Company
and (y) in the case of any Restricted Subsidiary, dividends or distributions
payable to the Company or any Restricted Subsidiary of the Company); (ii)
purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Company or any of its Restricted Subsidiaries (other than any such Equity
Interests that are owned by the Company or a Restricted Subsidiary); (iii) make
any voluntary or optional principal payment on, or voluntary or optional
purchase, redemption, defeasance, or other acquisition or retirement for value
of, any Subordinated Debt; or (iv) make any Investment that is a Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment (the amount of
any such Restricted Payment, if other than cash, being the fair market value (as
conclusively evidenced by a resolution of the Board of Directors of the Company
set forth in an Officers' Certificate delivered to the Trustee within 60 days
prior to the date of such Restricted Payment) of the asset(s) proposed to be
transferred by the Company or such Restricted Subsidiary, as the case may be,
pursuant to such Restricted Payment):
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, 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 most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 3.09; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries
after June 30, 1998 (excluding Restricted Payments permitted by clauses
(B), (C) and (D) of the next succeeding paragraph), is less than the
sum of (i) 50% of the Consolidated Net Income of the Company for the
period (taken as one
48
accounting period) from the beginning of the first fiscal quarter
commencing after June 30, 1998 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 Company from the issue or sale (other than to a Subsidiary of the
Company) since June 30, 1998 of Qualified Equity Interests of the
Company or of debt securities of the Company or any of its Restricted
Subsidiaries that have been converted into or exchanged for such
Qualified Equity Interests of the Company.
If no Default or Event of Default has occurred and is continuing, or
would occur as a consequence thereof, the foregoing provisions will not prohibit
the following Restricted Payments: (A) the payment of any dividend within 60
days after the date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of the Indenture; (B) the
payment of cash dividends on any series of Disqualified Stock issued after the
date of the Indenture in an aggregate amount not to exceed the cash received by
the Company since the date of the Indenture upon issuance of such Disqualified
Stock; (C) the redemption, repurchase, retirement or other acquisition of any
Equity Interests of the Company or any Restricted Subsidiary in exchange for, or
out of the net cash proceeds of, the substantially concurrent sale (other than
to a Subsidiary of the Company) of Qualified Equity Interests of the Company;
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement or other acquisition shall be excluded
from clause (c) (ii) of the preceding paragraph; (D) the defeasance, redemption
or repurchase of Subordinated Debt (including any Subordinated Debt that
constitutes Acquired Debt) with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or in exchange for or out of the net cash
proceeds from the substantially concurrent sale (other than to a Subsidiary of
the Company) of Qualified Equity Interests of the Company; provided that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from clause (c)
(ii) of the preceding paragraph; (E) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or
any Restricted Subsidiary held by any present or former member of the Company's
(or any of its Subsidiaries') management (which for purposes of this clause (E)
includes directors) or the heirs, estate or legatees of, or any entity
controlled by, any such member pursuant to any management equity subscription
agreement, stock option agreement or other employee benefit plan; provided that
the aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests pursuant to this Clause (E) shall not exceed $1 million in any
calendar year (with unused amounts in a calendar year being carried forward to a
subsequent calendar year, subject to a maximum of $2 million in any calendar
year); (F) the repurchase of any Subordinated Debt at a
49
purchase price not greater than 101% of the principal amount of such
Subordinated Debt in the event of a Change of Control pursuant to a provision
similar to Section 3.17; provided that prior to such repurchase the Company has
made a Change of Control Offer as provided in Section 3.17 and has repurchased
all Securities validly tendered for payment in connection with such Change of
Control Offer and (G) any other Restricted Payment which, together with all
other Restricted Payments made pursuant to this clause (G) on or after the Issue
Date, does not exceed $7 million.
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 and setting forth the basis upon which the
calculations required by this covenant were computed.
SECTION 3.09. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock. The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, Guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") after the
date of the Indenture any Indebtedness (including Acquired Debt) and that the
Company will not issue any Disqualified Stock and the Company will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) and the Company may issue shares of Disqualified Stock if (i) no Default
or Event of Default will have occurred and be continuing or would occur as a
consequence thereof and (ii) 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 2.5 to 1, 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. Indebtedness consisting of
reimbursement obligations in respect of a letter of credit will be deemed to be
incurred when the letter of credit is first issued. The Company will not permit
any of its Unrestricted Subsidiaries to incur any Indebtedness other than
Non-Recourse Debt.
The foregoing provisions will not apply to:
(i) the incurrence by the Company of Senior Debt under the New
Credit Facility, and Guarantees thereof by its Restricted
Subsidiaries, in an aggregate principal amount at any time
outstanding not to exceed an amount equal to $85 million less
the aggregate amount of all mandatory payments applied to
repay loans (other than revolving
50
credit loans) outstanding thereunder or to permanently reduce
the revolving credit commitments thereunder;
(ii) the incurrence by the Company of Indebtedness
represented by the Securities;
(iii) Existing Indebtedness;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange
for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund, Indebtedness
that was permitted by the Indenture to be incurred (including,
without limitation, Existing Indebtedness);
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the
Company and any of its Restricted Subsidiaries; provided that
upon either (a) the transfer or other disposition by the
Company or a Restricted Subsidiary of any Indebtedness so
permitted under this clause (v) to a Person other than the
Company or a Restricted Subsidiary or (b) the issuance, sale,
transfer or other disposition of Equity Interests (including
by consolidation or merger) in a Restricted Subsidiary to a
Person other than the Company or a Restricted Subsidiary which
results in such Restricted Subsidiary ceasing to be a
Restricted Subsidiary, the provisions of this clause (v) shall
no longer be applicable to such Indebtedness and such
Indebtedness shall be deemed to have been incurred at the time
of any such issuance, sale, transfer or other disposition, as
the case may be;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations or Guarantees thereof,
provided that such Hedging Obligations are incurred for the
purpose of (A) fixing or hedging interest rate or currency
risk with respect to any fixed or floating rate Indebtedness
that is permitted by the Indenture to be outstanding or any
receivable or liability, the payment of which receivable or
liability is determined by reference to a foreign currency;
provided that the notional principal amount of any such
Hedging Obligation does not exceed the principal amount of the
Indebtedness to which such Hedging Obligation relates or (B)
fixing or hedging risk with respect to fluctuations in the
cost of its raw materials; provided that such obligation is
entered into by the Company or a Restricted Subsidiary for
valid business purposes other than speculative purposes
51
(as determined by the Company's or such Restricted
Subsidiary's chief financial officer in the exercise of his or
her good faith business judgment);
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by performance bonds,
bankers' acceptances, standby letters of credit, mechanic's
xxxx xxxxx or appeal bonds, in each case to the extent
incurred in the ordinary course of business of the Company or
such Restricted Subsidiary;
(viii) the issuance by any of the Company's Restricted
Subsidiaries of shares of preferred stock to the Company or a
Restricted Subsidiary; provided that upon the transfer or
other disposition by the Company or a Restricted Subsidiary of
any such shares to a Person other than the Company or a
Restricted Subsidiary, the provisions of this clause (viii)
shall no longer be applicable to such preferred stock and such
preferred stock shall be deemed to have been issued to such
Person at the time of any such transfer or other disposition
and shall be required to satisfy the provisions of clause (ix)
hereof;
(ix) the incurrence by any Restricted Subsidiary of
Indebtedness, or the issuance by any Restricted Subsidiary of
preferred stock, the aggregate principal amount of which, in
the case of Indebtedness, or the total liquidation preference
of which, in the case of preferred stock, together with (x)
all other Indebtedness of the Company's Restricted
Subsidiaries (other than Guarantees of the New Credit
Facility) at the time outstanding and (y) the total
liquidation preference of all other preferred stock of the
Company's Restricted Subsidiaries at the time issued and
outstanding and, in each case, held by any Person other than
the Company or any Restricted Subsidiary, does not exceed the
greater of (1) 5% of the Company's Stockholders' Equity as of
the date of incurrence or (2) $2 million; provided that, in
the case of clause (1) only, 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 Indebtedness
(including Acquired Subsidiary Debt) is incurred would have
been at least 2.5 to 1, determined on a pro forma basis,
provided further, that solely for the purpose of determining
whether the aggregate principal amount of Indebtedness of the
Company's Restricted Subsidiaries at any time outstanding
exceeds 5% of the Company's Stockholders' Equity, Acquired
Subsidiary Debt shall be excluded;
52
(x) the incurrence by the Company or any Restricted
Subsidiary of Indebtedness arising from agreements providing
for indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the
Company or any of its Restricted Subsidiaries pursuant to such
agreements, in each case incurred in connection with the
disposition of any business, assets or Restricted Subsidiary
(other than Guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such
acquisition), in a principal amount not to exceed the gross
proceeds actually received by the Company or any Restricted
Subsidiary in connection with such disposition; and
(xi) 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 million.
SECTION 3.10. Disposition of Proceeds of Asset Sales. The Company will
not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least equal to the
fair market value (as conclusively determined by a resolution of the Board of
Directors of the Company set forth in an Officer's Certificate delivered to the
Trustee) of the assets or Equity Interests issued or sold or otherwise disposed
of and (ii) at least 75% of the consideration therefor received by the Company
or such Restricted Subsidiary is in the form of (x) cash or Temporary Cash
Investments or (y) property or assets that are used or useful in a Permitted
Business; provided that for purposes of this provision, the amount of (A) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet or in the notes thereto), of the Company or any Restricted
Subsidiary (other than, in the case of an Asset Sale by the Company, liabilities
that are by their terms subordinated to the Securities) that are assumed by the
transferee of any such assets and (B) any securities or other obligations
received by the Company or any such Restricted Subsidiary from such transferee
that are immediately converted by the Company or such Restricted Subsidiary into
cash (or as to which the Company or such Restricted Subsidiary has received at
or prior to the consummation of the Asset Sale a commitment (which may be
subject to customary conditions) from a nationally recognized investment,
merchant or commercial bank to convert into cash within 90 days of the
consummation of such Asset Sale and which are thereafter actually converted into
cash within such 90-day period) will be deemed to be cash (but shall not be
deemed to be Net Proceeds for purposes of the following provisions until reduced
to cash). Notwithstanding the foregoing, it will not be a
53
violation of the foregoing provisions if the Company or a Restricted Subsidiary
receives Investments as all or part of the consideration for an Asset Sale
(which consideration is not otherwise permitted), if such Investments constitute
Restricted Investments permitted by Section 3.08
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or the Restricted Subsidiary, as the case may be, may apply
such Net Proceeds (i) to make a capital expenditure or to acquire other tangible
assets, in each case, that are used or useful in any Permitted Business or (ii)
to the extent not applied pursuant to clause (i), to permanently reduce Senior
Debt (and, in the case of revolving credit loans, to correspondingly reduce
commitments with respect thereto). Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute "EXCESS PROCEEDS." When the aggregate amount of Excess
Proceeds exceeds $5 million, the Company will be required to make an offer to
all Holders of Securities and holders of any other Indebtedness of the Company
ranking on a parity with the Securities from time to time outstanding with
similar provisions requiring the Company to make an offer to purchase or to
redeem such Indebtedness with the proceeds from any Asset Sales, pro rata in
proportion to the respective principal amounts of Securities and such other
Indebtedness then outstanding (an "ASSET SALE OFFER") to purchase the maximum
principal amount of the Securities and such other Indebtedness that may be
purchased out of the Excess Proceeds, at an offer price in cash equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase (the "PURCHASE PRICE"), in accordance with the procedures set
forth below. To the extent that the aggregate amount of Securities and such
other Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Securities and such
other Indebtedness surrendered by holders thereof exceeds the amount of Excess
Proceeds, the Securities and such other Indebtedness will be purchased on a pro
rata basis. Upon completion of an Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
No later than 5 Business Days after the date on which the aggregate
amount of Excess Proceeds exceeds $5 million, the Company shall notify the
Trustee of such Asset Sale Offer and provide the Trustee with an Officer's
Certificate setting forth the calculations used in determining the amount of Net
Proceeds to be applied to the purchase of Securities. The Company shall commence
or cause to be commenced the Asset Sale Offer on a date no later than 20
Business Days after such notice (the "COMMENCEMENT DATE").
The Asset Sale Offer shall remain open for at least 20 Business Days
after the Commencement Date relating to such Asset Sale Offer and shall remain
open for no more than such 20 Business Days, except to the extent required by
applicable law (as
54
so extended, the "OFFER PERIOD"). No later than two Business Days after the
termina tion of the Offer Period (the "PURCHASE DATE"), the Company shall
purchase the principal amount (the "OFFER AMOUNT") of Securities required to be
purchased in such Asset Sale Offer pursuant to this Section or, if less than the
Offer Amount has been tendered, all Securities tendered in response to the Asset
Sale Offer, in each case for an amount in cash equal to the Purchase Price.
If the Purchase Date is on or after an interest payment record date and
on or before the related interest payment date, any accrued interest shall be
paid to the Person in whose name a Security is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Securities pursuant to the Asset Sale Offer.
On the Commencement Date of any Asset Sale Offer, the Company shall
send, or at the Company's request the Trustee shall send, by first class mail, a
notice to each of the Holders at their last registered address, with a copy to
the Trustee and the paying agent, offering to repurchase the Securities held by
such Holder pursuant to the procedure specified in such notice. Such notice,
which shall govern the terms of the Asset Sale Offer, shall contain all
instructions and materials necessary to enable the Holders to tender Securities
pursuant to the Asset Sale Offer and shall state:
(1) that the Asset Sale Offer is being made
pursuant to this Section and the length of time the
Asset Sale Offer shall remain open;
(2) the Offer Amount, the Purchase Price and the
Purchase Date;
(3) that any Security not tendered or accepted
for payment shall continue to accrue interest;
(4) that, unless the Company defaults in the
payment of the Purchase Price, any Security accepted
for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security
purchased pursuant to any Asset Sale Offer shall be
required to surrender the Security, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Company, a
depositary, if appointed by the Company, or a paying
agent at the address specified in the notice prior to
the
55
close of business on the Business Day next preceding
the Purchase Date;
(6) that Holders shall be entitled to withdraw
their election if the Company, depositary or paying
agent, as the case may be, receives, not later than
the close of business on the Business Day next
preceding the termination of the Offer Period, a
facsimile transmission or letter setting forth the
name of the Holder, the certificate number and
principal amount of the Security the Holder delivered
for purchase and a statement that such Holder is
withdrawing his election to have such Security
purchased;
(7) that, if the aggregate principal amount of
Securities surrendered by Holders exceeds the Offer
Amount, the Trustee shall select the Securities to be
purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Trustee so that
only Securities in denominations of $1,000, or
integral multiples thereof, shall be purchased);
(8) that Holders whose Securities were purchased
only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the
Securities surrendered; and
(9) the circumstances and relevant facts
regarding such Asset Sale and any other information
that would be material to a decision as to whether to
tender a Security pursuant to the Asset Sale Offer.
On the Purchase Date, the Company shall, to the extent lawful, (i)
accept for payment, on a pro rata basis to the extent necessary, an aggregate
principal amount equal to the Offer Amount of Securities tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Securities or portion thereof so tendered, (ii) deposit with the paying agent
prior to 12:00 noon (New York time) on the Purchase Date an amount in
immediately available funds equal to the Purchase Price in respect of all
Securities or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officer's
Certificate stating the aggregate principal amount of Securities or portions
thereof being purchased by the Company. The paying agent shall promptly mail to
each Holder of Securities so tendered payment in an amount equal to the Purchase
Price for such Securities and the Trustee shall promptly authenticate and mail
(or
56
cause to be transferred by book entry) a new Security to such Holder equal in
principal amount to any unpurchased portion of the Securities surrendered, if
any; provided that each such new Security shall be in a principal amount of
$1,000 or an integral multiple thereof.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other United States Federal, state, or territorial
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the purchase of Securities as a
result of the Asset Sale Offer.
SECTION 3.11. Limitation on Liens. The Company will not, and will not
permit any of its Restricted Subsidiaries to, incur any Indebtedness secured by
a Lien ("SECURED INDEBTEDNESS") which is not Senior Debt unless
contemporaneously therewith effective provision is made to secure the Securities
equally and ratably with (or, if the Secured Indebtedness is Subordinated Debt,
on a basis senior to) such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
SECTION 3.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to (i)(a) pay dividends
or make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest
or participation in, or measured by, its profits, or (b) pay any Indebtedness
owed to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries. The foregoing shall not restrict encumbrances or restrictions
existing under or by reason of (a) Existing Indebtedness as in effect on the
date of the Indenture, and any extensions, refinancings, renewals or
replacements of any of the foregoing; provided that the encumbrances and
restrictions in any such extensions, refinancings, renewals or replacements are
no more restrictive than those contained in the initial agreement or instrument,
(b) the Indenture, (c) applicable law, (d) any instrument governing Indebtedness
or Capital Stock of a Person acquired by, or the properties or assets of which
Person are acquired by, the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition or in
violation of Section 3.09), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than the Person
(including its Subsidiaries), or the property or assets of the Person (including
its Subsidiaries), so acquired, (e) any lease, license, conveyance or contract
insofar as the provisions thereof restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to such lease,
license, conveyance or
57
contract, (f) purchase money obligations for acquired property that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (g) Permitted Refinancing Indebtedness, 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, (h) an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock of, or
property and assets of, a Restricted Subsidiary so long as such agreement is not
otherwise prohibited by the Indenture; provided that the restrictions contained
in such agreement are applicable only to such Restricted Subsidiary or its
assets and provided further that such sale or disposition is otherwise permitted
by the terms of the Indenture, (i) any agreement to transfer, an option or a
right with respect to any property of the Company or any of its Restricted
Subsidiaries that imposes restrictions of the nature described in clause (iii)
above so long as such agreement to transfer, option or right is not otherwise
prohibited by the Indenture, or (j) the New Credit Facility and related
documentation as the same is in effect on the date of the Indenture and as
amended or replaced from time to time; provided that no such amendment or
replacement is more restrictive as to the matters enumerated above than the New
Credit Facility and related documentation as in effect on the date of the
Indenture. Nothing contained in this paragraph shall prevent the Company or any
Restricted Subsidiary from incurring any Secured Indebtedness or from
restricting the sale or other disposition of property or assets that secure such
Secured Indebtedness; provided that the incurrence of such Secured Indebtedness
is otherwise permitted under Section 3.11.
SECTION 3.13. Limitation on Line of Business. The Company will not, and
will not permit any of its Restricted Subsidiaries to, engage to any material
extent in any business other than any one or more of the paperboard, packaging
and paper businesses, the gypsum wallboard and other gypsum businesses,
recycling businesses generally, and business related generally to any of the
foregoing (each, a "PERMITTED BUSINESS").
SECTION 3.14. Limitation on Senior Subordinated Debt. The Company will
not incur, create, issue, assume, Guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Debt and senior in any respect in right of payment to the Securities.
SECTION 3.15. Limitation on Transactions with Affiliates. The Company
will not, and will not permit any of its Restricted Subsidiaries to, sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"), unless
(i) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that
58
could have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (ii) the Company delivers to
the Trustee (a) with respect to any Affiliate Transaction involving aggregate
consideration in excess of $1 million, a resolution of the Board of Directors of
the Company set forth in an Officer's Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors of the Company and (b) with respect to any Affiliate Transaction
involving aggregate consideration in excess of $5 million, an opinion as to the
fairness to the Company or such Restricted Subsidiary of such Affiliate
Transaction from a financial point of view issued by an investment banking firm
of national standing, or by another nationally recognized independent expert
with experience appraising the terms and conditions of transactions similar to
such Affiliate Transaction. Notwithstanding the foregoing: (A) transactions or
payments pursuant to any employment arrangements, employee relations or employee
or director benefit plans entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Restricted Subsidiary, (B) transactions between
or among the Company and/or its Restricted Subsidiaries and (C) transactions
between a Person and an Affiliate existing at the time such Person is merged
with or into or becomes a Restricted Subsidiary, except to the extent such
transaction was entered into in connection with, or in contemplation of, such
Person merging with or into or becoming a Restricted Subsidiary, in each case,
shall not be deemed to be Affiliate Transactions.
Notwithstanding the foregoing, any Investment in Affiliates permitted
by Section 3.08 shall not be prohibited by the foregoing limitations on
Affiliate Transactions.
SECTION 3.16. Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries. The Company will not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee or secure the payment of any other
Indebtedness of the Company or any of its Restricted Subsidiaries (except
Indebtedness of a Restricted Subsidiary of such Restricted Subsidiary) unless
(i) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to the Indenture providing for the Guarantee of the
payment of the Securities by such Restricted Subsidiary, which Guarantee shall
be senior to or pari passu with such Restricted Subsidiary's Guarantee of or
pledge to secure such other Indebtedness and (ii) such Restricted Subsidiary
waives and will not in any manner whatsoever claim or take the benefit or
advantage of any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under such Guarantee. Notwithstanding the
foregoing, any such Guarantee by a Restricted Subsidiary of the Securities shall
provide by its terms that it shall be automatically and
59
unconditionally released and discharged upon a sale or other disposition, by way
of merger or otherwise, to any Person not an Affiliate of the Company, of the
Company's stock in, or the assets of, such Restricted Subsidiary, which sale or
other disposition results in such Restricted Subsidiary ceasing to be a
Restricted Subsidiary and such sale or other disposition is made in compliance
with, and the Net Proceeds therefrom are applied in accordance with, the
applicable provisions of the Indenture. The form of such supplemental indenture
will be attached as an exhibit to the Indenture. The foregoing provisions will
not be applicable to (i) Guarantees by Restricted Subsidiaries of Indebtedness
under the New Credit Facility, (ii) Guarantees of Indebtedness of a Person by
its subsidiaries in effect prior to the time such Person is merged with or into
or otherwise became a Restricted Subsidiary, provided that such Guarantees do
not extend to any other Indebtedness of such Person or any other Person and
(iii) any one or more Guarantees of up to $2 million in aggregate principal
amount of Indebtedness of the Company or any Restricted Subsidiary at any time
outstanding.
SECTION 3.17. Change of Control. Upon the occurrence of a Change of
Control, each Holder of Securities will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Securities pursuant to the offer described below (the "CHANGE OF
CONTROL OFFER") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase (the "CHANGE OF CONTROL PAYMENT") on a date that is not more than 90
days after the occurrence of such Change of Control (the "CHANGE OF CONTROL
PAYMENT DATE"). Prior to the mailing of notice to Holders provided for in the
succeeding paragraph, but in any event within 30 days following any Change of
Control, the Company covenants to (i) repay in full all Senior Debt that would
prohibit the repurchase of the Securities as provided for in the succeeding
paragraph or (ii) obtain any requisite consents under instruments governing any
such Senior Debt to permit the repurchase of the Securities as provided for in
the succeeding paragraph. The Company shall first comply with the covenant in
the preceding sentence before it shall be required to repurchase Securities
pursuant to this Section 3.17.
Within 30 days following any Change of Control, the Company will mail,
or at the Company's request the Trustee will mail, a notice of a Change of
Control to each Holder (at its last registered address with a copy to the
Trustee and the paying agent) offering to repurchase the Securities held by such
Holder pursuant to the procedures specified in such notice. The Change of
Control Offer shall remain open from the time of mailing until the close of
business on the Business Day next preceding the Change of Control Payment Date.
The notice, which shall govern the terms of the Change of Control Offer, shall
contain all instructions and materials necessary to enable the Holders to tender
Securities pursuant to the Change of Control Offer and shall state:
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(1) that the Change of Control Offer is being
made pursuant to this Section 3.17 and that all
Securities tendered will be accepted for payment;
(2) the Change of Control Payment and the Change
of Control Payment Date, which date shall be no
earlier than 30 days nor later than 60 days from the
date such notice is mailed;
(3) that any Security not tendered will continue
to accrue interest in accordance with the terms of
this Indenture;
(4) that, unless the Company defaults in the
payment of the Change of Control Payment, all
Securities accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders electing to have a Security
purchased pursuant to any Change of Control Offer
will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on
the reverse of the Security completed, to the
Company, a depositary, if appointed by the Company,
or a paying agent at the address specified in the
notice prior to the close of business on the Business
Day next preceding the Change of Control Payment
Date;
(6) that Holders will be entitled to withdraw
their election if the Company, depositary or paying
agent, as the case may be, receives, not later than
the close of business on the Business Day next
preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the
name of the Holder, the certificate number and
principal amount of the Security the Holder delivered
for purchase, and a statement that such Holder is
withdrawing his election to have such Security
purchased;
(7) that Holders whose Securities are being
purchased only in part will be issued new Securities
equal in principal amount to the unpurchased portion
of the Securities surrendered, which unpurchased
portion must be equal to $1,000 in principal amount
or an integral multiple thereof; and
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(8) the circumstances and relevant facts
regarding such Change of Control (including, but not
limited to, information with respect to pro forma
historical financial information after giving effect
to such Change of Control, information regarding the
Person or Persons acquiring control and such Person's
or Persons' business plans going forward) and any
other information that would be material to a
decision as to whether to tender a Security pursuant
to the Change of Control Offer.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (i) accept for payment all Securities or portions thereof properly
tendered and not withdrawn pursuant to the Change of Control Offer, (ii) deposit
with the paying agent before 12:00 noon (New York time) on the Change of Control
Payment Date an amount in immediately available funds equal to the Change of
Control Payment in respect of all Securities or portions thereof so tendered and
(iii) deliver or cause to be delivered to the Trustee the Securities so accepted
together with an Officer's Certificate stating the aggregate principal amount of
Securities or portions thereof being purchased by the Company. The paying agent
will promptly mail to each Holder of Securities so tendered the Change of
Control Payment for such Securities, and the Trustee will promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new
Security equal in principal amount to any unpurchased portion of the Securities
surrendered, if any; provided that each such new Security will be in a principal
amount of $1,000 or an integral multiple thereof. The Company will publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other United States Federal, state, or territorial
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Securities as a
result of a Change of Control.
SECTION 3.18. Reports. (i) So long as any of the Securities remain
outstanding, the Company will furnish to the Trustee and the Holders of
Securities within 15 days after the filing thereof with the Commission copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act. All obligors on
the Securities shall comply with the provisions of the Trust Indenture Act
Section 314(a). The Company shall file with the Commission (a) within 90 days
after the end of each fiscal year, annual reports on Form 10-K (or any successor
or comparable form) containing the information required to be contained therein
(or required in such successor or
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comparable form), including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and a report thereon by the Company's
certified public accountants; (b) within 45 days after the end of each of the
first three fiscal quarters of each fiscal year, reports on Form 10-Q (or any
successor or comparable form) containing the information required to be
contained therein (or required in any successor or comparable form), including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations"; and (c) promptly from time to time after the occurrence of an event
required to be therein reported, such other reports on Form 8-K (or any
successor or comparable form) containing the information required to be
contained therein (or required in any successor or comparable form); provided,
however, that the Company shall not be in default of the provisions of this
Section 3.18) for any failure to file reports with the Commission solely by the
refusal of the Commission to accept the same for filing. Each of the financial
statements contained in such reports shall be prepared in accordance with GAAP.
(ii) The Trustee, at the Company's expense, shall promptly mail
copies of all such annual reports, information, documents and other
reports provided to the Trustee pursuant to Section 3.18(i) hereof to
the Holders at their addresses appearing in the register of Securities
maintained by the Registrar.
(iii) Whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability and make such
information available to securities analysts and prospective investors
upon request.
(iv) The Company shall provide the Trustee with a sufficient
number of copies of all reports and other documents and information
that the Trustee may be required to deliver to the Holders under this
Section 3.18.
(v) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer's
Certificates).
SECTION 3.19. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not (i) 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 or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on
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the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture and the Company will expressly waive all benefit or advantage of any
such law and (ii) by reason of any such law hinder, delay or impede the
execution of any power granted to the Trustee under this Indenture and will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Events of Default. Each of the following constitutes an
"Event of Default":
(i) default for 30 days in the payment when due of interest on
the Securities (whether or not prohibited by the provisions described
in Article 9);
(ii) default in payment when due of the principal of or premium,
if any, on the Securities (whether or not prohibited by the provisions
described in Article 9);
(iii) failure by the Company to comply with the provisions of
Sections 3.08, 3.09, 3.10, or 3.17 hereof;
(iv) failure by the Company for 30 days after notice to comply
with any of its other covenants or agreements in the Indenture or the
Securities;
(v) any default that 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 Significant Subsidiary of the Company (or the payment of which
is Guaranteed by the Company or any Significant Subsidiary of the
Company), whether such Indebtedness or Guarantee exists on the date
hereof or is created after the date hereof, which default (a)
constitutes a Payment Default or (b) results in the acceleration of
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 under which there has been a
Payment Default or that has been so accelerated, aggregates $3 million
or more;
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(vi) failure by the Company or any Significant Subsidiary of the
Company to pay a final judgment or final judgments entered by a court
or courts of competent jurisdiction against the Company or any
Significant Subsidiary of the Company aggregating in excess of $3
million if such final judgment or judgments remain unpaid or
undischarged for a period (during which execution shall not be
effectively stayed) of 60 days after their entry;
(vii) the Company or any Significant Subsidiary of the Company
thereof pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case in which it is the debtor,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability generally to pay its
debts as the same become due; and
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case in which it
is the debtor,
(B) appoints a Custodian of the Company or any
Significant Subsidiary of the Company or for all or
substantially all of the property of the Company or any
Significant Subsidiary of the Company, or
(C) orders the liquidation of the Company or any
Significant Subsidiary of the Company,
and the order or decree remains unstayed and in effect for 60 days.
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The term "BANKRUPTCY LAW" means title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
SECTION 4.02. Acceleration. If any Event of Default (other than an
Event of Default specified in clause (vii) or (viii) of Section 4.01 hereof)
occurs and is continuing, the Trustee by written notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Securities by written notice to the Company and the Trustee, may declare the
unpaid principal of, premium, if any, and any accrued and unpaid interest on all
the Securities to be due and payable immediately; provided that for so long as
the New Credit Facility is in effect, such declaration shall not become
effective until the earlier of (i) five Business Days after receipt of the
written notice declaring the Securities to be due and payable immediately by the
administrative agent under the New Credit Facility or (ii) acceleration of the
Indebtedness under the New Credit Facility. Except as set forth above, upon such
declaration the principal of, premium, if any, and interest shall be due and
payable immediately. If an Event of Default specified in clause (vii) or (viii)
of Section 4.01 hereof occurs with respect to the Company or any Significant
Subsidiary of the Company, the unpaid principal of, premium, if any, and any
accrued and unpaid interest on all the Securities shall ipso facto become and be
immediately due and payable without further action or notice on the part of the
Trustee or any Holder.
SECTION 4.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquies cence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 4.04. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Securities then outstanding by
written notice to the Trustee may on behalf of the Holders of all of the
Securities waive any existing Default or Event of Default and its consequences
under this Indenture except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been
66
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 4.05. Control by Majority. Holders of a majority in aggregate
principal amount of the then outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture that
the Trustee determines may be unduly prejudicial to the rights of other Holders
or that may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper which is not inconsistent with any such
direction.
SECTION 4.06. Limitation on Suits. A Holder may pursue a remedy with
respect to this Indenture or the Securities only if:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
the then outstanding Securities make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Securities do not
give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 4.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal, premium, if any, and interest on the Security , on or after the
respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
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SECTION 4.08. Collection Suit by Trustee. If an Event of Default
specified in Section 4.01(i) or (ii) hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Securities and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover amounts due the Trustee under
Section 5.07 hereof, including the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 4.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Securities),
its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial 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 to 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 5.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 5.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained 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 Securities 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 4.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 5.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
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Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 4.10 upon five Business Days prior notice to
the Company.
SECTION 4.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 4.07 hereof, or a
suit by Holders of more than 10% in aggregate principal amount of the then
outstanding Securities.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
69
(a) prior to the occurrence of an Event of Default of which the
Trustee has actual notice and after the curing or waiving of all such Events of
Default which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations 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 the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
Officer's Certificates or other certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such statements, Officer's Certificates or other
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of not less than a majority in principal amount of the Securities at
the time outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
This Section 5.01 is in furtherance of and subject to Sections 315 and
316 of the Trust Indenture Act of 1939.
SECTION 5.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
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(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company, as
the case may be;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder, of which
the Trustee has actual notice, and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested
in writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by
the Company or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Company upon demand;
71
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture;
(i) the permissive right of the Trustee to take an action enumerated in
this Indenture shall not be construed as a duty to take such action; and
(j) notwithstanding any other provision of this Indenture to the
contrary, any provision intended to provide authority to act, right to payment
of fees and expenses, protection, immunity and indemnification to the Trustee
shall be interpreted to include any action of the Trustee whether it is acting
in its capacity as Trustee, Registrar, or paying agent.
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, any
supplemental indenture or instruments of further assurance or of the Securities.
The Trustee shall not be accountable for the use or application by the Company
of any of the Securities or of the proceeds thereof.
SECTION 5.04. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee shall not be held accountable for the use by any Holder of any
Securities properly authenticated and delivered by the Trustee hereunder. The
Trustee or any agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.05. Moneys Held by Trustee. Subject to the provisions of
Section 11.06 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions
72
of law. Neither the Trustee nor any agent of the Company or the Trustee shall be
under any liability for interest on any moneys received by it hereunder.
SECTION 5.06. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is actually
known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Holder in the manner and to the extent provided in Trust Indenture Act Section
313(c) notice of the Default or Event of Default within 45 days after it occurs,
unless such Default or Event of Default has been cured; provided, however, that,
except in the case of a default in the payment of the principal of, premium, if
any, or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as the Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders.
SECTION 5.07. Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing among the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Company covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The obligations of the
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities, and the Securities and the Guarantee are hereby subordinated to such
senior claim.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 4.01(a)(vii) or Section 4.01(a)(viii),
the
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expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 5.08. Right of Trustee to Rely on Officer's Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.09. Persons Eligible for Appointment as Trustee. The Trustee
hereunder shall at all times be a corporation having a combined capital and
surplus of at least $100,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor trustee,
or any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
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(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, after written
request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder
who has been a bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company the evidence provided for in
Section 6.01 of the action in that regard taken by the Securityholders.
If no successor trustee shall have been so appointed and have accepted
appointment 30 days after the mailing of such notice of removal, the trustee
being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 5.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 5.11.
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SECTION 5.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 11.06, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument as may be reasonably requested by the Company
or such successor trustee transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.07.
Upon acceptance of appointment by a successor trustee as provided in
this Section 5.11, the Company shall mail notice thereof by first-class mail to
the holders of Securities at their last addresses as they shall appear in the
Security register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 5.10.
If the Company fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or to which the Trustee's assets
may be sold, or any corporation resulting from any merger, conversion,
consolidation or sale to which the Trustee shall be a party or by which the
Trustee's property may be bound, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 5.09, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication
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of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 5.13. Preferential Collection of Claims. Reference is made to
Section 311 of the Trust Indenture Act. For purposes of Section 311(b) (4) and
(6) of such Act, the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.01. Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders in person or by 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.
Proof of execution of any
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instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in
favor of the Trustee and the Company if made in the manner provided in this
Article. Any request, demand, authorization, direction, notice, consent, waiver
or other action issued or taken by any Holder of any Security shall be binding
upon any subsequent Holder of the same Security or any Security issued in
substitution therefor.
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
Registrar thereof. The Company may set a record date for purposes of determining
the identity of holders of Securities entitled to vote or consent to any action
referred to in Section 6.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or resolicitation) not more than 60 days nor less than five days
prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only holders of Securities of
record on such record date shall be entitled to so vote or give such consent or
to withdraw such vote or consent.
SECTION 6.03. Securities Owned by Company Deemed Not Outstanding. In
determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver only Securities which the Trustee actually knows are so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01 and
5.02, the Trustee shall be
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entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are outstanding for the purpose of any such determination.
SECTION 6.04. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security and of
any Securities issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the holders of the percentage in aggregate principal amount
of the Securities specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of
all the Securities.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of Holders. The
Company and the Trustee may amend or supplement this Indenture or the Securities
without the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(iii) to provide for any supplemental indenture required
pursuant to Section 3.16 hereof;
(iv) to provide for the assumption of the Company's
obligations to the Holders of the Securities in the case of any
transaction pursuant to Article 8 hereof;
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(v) to make any change that would provide any additional rights
or benefits to the Holders of the Securities or that does not adversely
affect the legal rights hereunder of any such Holder; or
(vi) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental indenture,
and upon receipt by the Trustee of the documents described in Section 7.04
hereof, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 7.02. With Consent of Holders. Except as provided in the next
succeeding paragraphs, this Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding (including consents obtained
in connection with a tender offer or exchange offer for such Securities), and
any existing default or compliance with any provision of this Indenture or the
Securities may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Securities (including
consents obtained in connection with a tender offer or exchange offer for such
Securities).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 7.04 hereof, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 7.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to
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mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver. Subject to
Sections 4.04 and 4.07 hereof, the Holders of a majority in aggregate principal
amount of the Securities then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Securities.
Without the consent of each Holder affected, however, an amendment or waiver may
not (with respect to any Security held by a non-consenting Holder):
(i) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of
any Security (other than provisions relating to the covenants described
under 3.10 and 3.17);
(iii) reduce the rate of or change the time for payment of
interest on any Security;
(iv) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities (except
a rescission of acceleration of the Securities by the Holders of at
least a majority in aggregate principal amount thereof and a waiver of
the payment default that resulted from such acceleration);
(v) make any Security payable in money other than that
stated in the Securities;
(vi) make any change in Section 4.04 or 4.07 hereof;
(vii) waive a redemption payment with respect to any Security
(other than a payment described by Section 3.10 or 3.17);
(viii) modify the ranking or priority of the Securities or the
Guarantee or modify the definition of Senior Debt or Designated Senior
Debt or amend or modify Article 9 in any manner adverse to the Holders;
or
(ix) make any change in this sentence of this Section 7.02.
SECTION 7.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities
shall thereafter be
81
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.04. Documents to Be Given to Trustee; Compliance with TIA.
Prior to the execution of any supplemental indenture, the Trustee shall receive
an Officer's Certificate and an Opinion of Counsel, each stating that in the
opinion of the signer thereof such supplemental indenture complies with the
applicable provisions of this Indenture and the TIA, and, subject to the
provisions of Sections 5.01 and 5.02, such Officer's Certificate and Opinion of
Counsel shall constitute conclusive evidence of the opinions and conclusions
therein stated. Every such supplemental indenture shall comply with the TIA.
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation approved by the Trustee as to form (but not as to substance) as to any
matter provided for by such supplemental indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities then
outstanding.
ARTICLE 8
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 8.01. When the Company May Merge, Etc. The Company will not
consolidate or merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of the properties or assets of the Company in one or
more related transactions, to another corporation, Person or entity unless (i)
the surviving corporation or the entity or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (the "Surviving Entity") is a corporation organized or existing under the
laws of the United States, any state thereof or the District of Colombia; (ii)
the Surviving Entity assumes all the obligations of the Company under the
Securities and the Indenture pursuant to a supplemental Indenture in form
reasonably satisfactory to the Trustee;
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(iii) immediately before and after giving effect to such transaction, and
treating any Indebtedness which becomes an obligation of the Company as a result
of such transaction as having been incurred by the Company at the time of the
transaction, no Default or Event of Default shall have occurred and be
continuing; and (iv) the Company or the Surviving Entity (A) will have
Consolidated Net Worth immediately after the transaction and prior to any
purchase accounting adjustments equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) 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 the first paragraph of Section
3.09.
SECTION 8.02. Successor Corporation Substituted. Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 8.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation), and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein.
Notwithstanding the foregoing, (i) a consolidation or merger by the
Company with or into, or (ii) the sale, assignment, transfer, lease, conveyance
or other disposition by the Company of all or substantially all of its property
or assets to, one or more of its Subsidiaries shall not relieve the Company from
its obligations under this Indenture or the Securities.
SECTION 8.03. Opinion of Counsel to Trustee. Prior to the consummation
of any transaction contemplated by this Article 8 or the execution of any
supplemental indenture related thereto, the Trustee shall receive an Opinion of
Counsel and an Officer's Certificate, each stating that in the opinion of the
signer thereof such consolidation, merger, conveyance, sale, transfer, lease,
exchange or other disposition complies with the applicable provisions of this
Indenture and any supplemental indenture complies with the terms of this
Indenture and the TIA, and, subject to Sections 5.01 and 5.02, such Officer's
Certificate and Opinion of Counsel shall constitute conclusive evidence of the
opinions and conclusions therein stated.
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ARTICLE 9
SUBORDINATION
SECTION 9.01. Agreement to Subordinate. The Company agrees, and each
Holder by accepting a Security agrees, any provision of this Indenture or the
Securities to the contrary notwithstanding, that all Obligations owed under and
in respect of the Securities are subordinated in right of payment, to the extent
and in the manner provided in this Article 9, to the prior payment in full in
cash or Cash Equivalents of all Obligations owed under and in respect of all
Senior Debt of the Company and that the subordination of the Securities pursuant
to this Article 9 is for the benefit of all holders of all Senior Debt of the
Company, whether outstanding on the Closing Date or incurred thereafter.
SECTION 9.02. Liquidation; Dissolution; Bankruptcy. (a) Upon any
distribution of cash, securities or other property of the Company to creditors
upon any Insolvency or Liquidation Proceeding with respect to the Company (i)
the holders of any Senior Debt of the Company will be entitled to receive
payment in full, in cash or Cash Equivalents, of all Obligations due in respect
of such Senior Debt (including Post-Petition Interest and, in the case of all
Designated Senior Debt, all Obligations with respect thereto) before the Holders
will be entitled to receive any payment or distribution with respect to the
Securities (including payment for the repurchase of Securities upon a Change of
Control), and (ii) until all Obligations with respect to such Senior Debt of the
Company are paid in full, in cash or Cash Equivalents, any payment or
distribution to which the Holders would be entitled shall be made to the holders
of the Company's Senior Debt on a pro rata basis (except payments made from the
trust described in Section 11.04 and except that Holders of the Securities may
receive Reorganization Securities).
Upon any Insolvency or Liquidation Proceeding with respect to the
Company, any payment or distribution of assets of the Company of any kind or
character, whether in cash, securities or other property, to which the Holders
or the Trustee would be entitled, except for the subordination provisions of
this Indenture, shall be paid by the Company, any paying agent or other Person
making such payment or distribution, or by the Holders or by the Trustee if
received by them, directly to the holders of the Company's Senior Debt (pro rata
to such holders on the basis of the amounts of the Obligations due in respect of
the Senior Debt held by them) or their representatives, as their interests may
appear, for application to the payment of all Obligations due in respect of such
Senior Debt (including Post-Petition Interest and, in the case of all Designated
Senior Debt, all Obligations with respect thereto) until all such Obligations
have been paid in full in cash, after giving effect to all other payments or
distributions to, or provisions made for, holders of the Company's Senior Debt.
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(b) A distribution may consist of cash, securities or other property,
by set-off or otherwise. For purposes of this Article 9, the words "cash,
securities or other property" shall not include any distribution of securities
of the Company or any other corporation provided for in any reorganization
proceeding under any Bankruptcy Law if (i) such securities constitute
Reorganization Securities, (ii) such distribution was authorized by an order or
decree of a court of competent jurisdiction, and (iii) such order gives effect
to (and states in such order or decree that effect has been given to) the
subordination of such securities to all Senior Debt of the Company not paid in
full in connection with such reorganization; provided that (a) all such Senior
Debt is assumed by the reorganized corporation and (b) the rights of the holders
of any such Senior Debt are not, without the consent of such holders, altered by
such reorganization, which consent shall be deemed to have been given if the
holders of such Senior Debt (or their representative), individually or as a
class, shall have approved such reorganization.
(c) Notwithstanding anything to the contrary in Section 9.02, Holders
of Securities may continue to receive payments from the trust established
pursuant to Section 11.04.
SECTION 9.03. Default on Designated Senior Debt. The Company may not
make any payment upon or in respect of the Securities (except in such
subordinated securities as described in Section 9.02(b) or from the trust
established pursuant to Section 11.04) if (i) a Payment Default on Designated
Senior Debt occurs and is continuing beyond any applicable period of grace or
(ii) any other default occurs and is continuing with respect to Designated
Senior Debt that permits holders of the Designated Senior Debt as to which such
default relates to accelerate its maturity and the Trustee receives a written
notice of such default (a "PAYMENT BLOCKAGE NOTICE") from the Company or any
Representative of such Designated Senior Debt. Payments on the Securities may be
resumed and all past due amounts on the Securities shall be paid (a) in the case
of a Payment Default, upon the date on which such default is cured or waived and
(b) in case of any default other than a Payment Default, upon the earlier of (1)
the date on which such nonpayment default is cured or waived or (2) 179 days
after the date on which the applicable Payment Blockage Notice is received, in
each case, unless the maturity of such Designated Senior Debt has been
accelerated and the Company has defaulted with respect to the payment of such
Designated Senior Debt. No new period of payment blockage may be commenced
unless and until 360 days have elapsed since the date of receipt by the Trustee
of the immediately prior Payment Blockage Notice. No default other than a
Payment Default that existed or was continuing on the date any Payment Blockage
Notice was given shall be, or be made, the basis for a subsequent Payment
Blockage Notice.
SECTION 9.04. When Distributions Must Be Paid Over. If the Company
shall make any payment to the Trustee on account of the principal of, or
premium, if any,
85
or interest on, the Securities, or any other Obligation in respect of the
Securities, or the Holders shall receive from any source any payment on account
of the principal of, premium, if any, or interest on, the Securities or any
Obligation in respect of the Securities, at a time when such payment is
prohibited by this Article 9, the Trustee or such Holders shall hold such
payment in trust for the benefit of, and shall pay over and deliver to, the
holders of the Company's Senior Debt (pro rata as to each of such holders on the
basis of the respective amounts of such Senior Debt held by them) or their
representative, as their respective interests may appear, for application to the
payment of all outstanding Senior Debt of the Company until all such Senior Debt
has been paid in full in cash, after giving effect to all other payments or
distributions to, or provisions made for, the holders of the Company's Senior
Debt.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such obligations on its part as are specifically set
forth in this Article 9, and no implied covenants or obligations with respect to
any holders of the Company's Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of the Company's Senior Debt, and shall not be liable to any
holders of such Senior Debt if the Trustee shall pay over or distribute to, or
on behalf of, Holders or the Company or any other Person, money or assets to
which any holders of such Senior Debt are entitled pursuant to this Article 9,
except if such payment is made at a time when a Responsible Officer has actual
knowledge that the terms of this Article 9 prohibit such payment.
SECTION 9.05. Notice. Neither the Trustee nor the paying agent shall at
any time be charged with the knowledge of the existence of any facts that would
prohibit the making of any payment to or by the Trustee or paying agent under
this Article 9 unless and until the Trustee or paying agent shall have received
written notice thereof from the Company or one or more holders of the Company's
Senior Debt or a Representative of any holders of such Senior Debt; and, prior
to the receipt of any such written notice, the Trustee or paying agent shall be
entitled to assume conclusively that no such facts exist. The Trustee shall be
entitled to rely on the delivery to it of written notice by a Person
representing itself to be a holder of the Company's Senior Debt (or a
Representative thereof) to establish that such notice has been given.
The Company shall promptly notify the Trustee and the paying agent in
writing of any facts it knows that would cause a payment of principal of,
premium, if any, or interest on, the Securities or any other Obligation in
respect of the Securities to violate this Article 9, but failure to give such
notice shall not affect the subordination of the Securities to the Senior Debt
of the Company provided in this Article 9 or the rights of holders of such
Senior Debt under this Article 9.
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SECTION 9.06. Subrogation. After all Senior Debt of the Company has
been paid in full in cash and until the Securities are paid in full, Holders
shall be subrogated (equally and ratably with all other Indebtedness pari-passu
with the Securities) to the rights of holders of such Senior Debt to receive
distributions applicable to such Senior Debt to the extent that distributions
otherwise payable to the Holders have been applied to the payment of such Senior
Debt. A distribution made under this Article 9 to holders of the Company's
Senior Debt that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on its Senior Debt.
SECTION 9.07. Relative Rights. This Article 9 defines the relative
rights of Holders and holders of the Company's Senior Debt. Nothing in this
Indenture shall: (1) impair, as between the Company and Holders, the Company's
Obligations, which are absolute and unconditional, to pay principal of, premium,
if any, and interest on the Securities in accordance with their terms; (2)
affect the relative rights of Holders and the Company's creditors other than
their rights in relation to holders of the Company's Senior Debt; or (3) prevent
the Trustee or any Holder from exercising its available remedies upon a Default
or Event of Default, subject to the rights of holders of the Company's Senior
Debt to receive distributions and payments otherwise payable to Holders.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article 9 shall not be
construed as preventing the occurrence of an Event of Default under Section
4.01.
SECTION 9.08. The Company and Holders May Not Impair Subordination. (a)
No right of any holder of the Company's Senior Debt to enforce the subordination
as provided in this Article 9 shall at any time or in any way be prejudiced or
impaired by any act or failure to act by the Company or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture, the
Securities or any other agreement regardless of any knowledge thereof with which
any such holder may have or be otherwise charged.
(b) Without in any way limiting Section 9.08(a), the holders of any
Senior Debt of the Company may, at any time and from time to time to the extent
not otherwise prohibited by this Indenture, without the consent of or notice to
any Holders, without incurring any liabilities to any Holder and without
impairing or releasing the subordination and other benefits provided in this
Indenture or the Holders' obligations to the holders of such Senior Debt, even
if any Holder's right of reimbursement or subrogation or other right or remedy
is affected, impaired or extinguished thereby, do any one or more of the
following: (i) amend, renew, exchange, extend, modify, increase or supplement in
any manner such Senior Debt or any instrument evidencing or guaranteeing or
securing such Senior Debt or any
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agreement under which such Senior Debt is outstanding (including, but not
limited to, changing the manner, place or terms of payment or changing or
extending the time of payment of, or renewing, exchanging, amending, increasing
or altering, (1) the terms of such Senior Debt, (2) any security for, or any
Guarantee of, such Senior Debt, (3) any liability of any obligor on such Senior
Debt (including any guarantor) or any liability incurred in respect of such
Senior Debt) (ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing such Senior Debt or any liability of any obligor
thereon, to such holder, or any liability incurred in respect thereof; (iii)
settle or compromise any such Senior Debt or any other liability of any obligor
of such Senior Debt to such holder or any security therefor or any liability
incurred in respect thereof and apply any sums by whomsoever paid and however
realized to any liability (including, without limitation, payment of any of the
Company's Senior Debt) in any manner or order; and (iv) fail to take or to
record or otherwise perfect, for any reason or for no reason, any lien or
security interest securing such Senior Debt by whomsoever granted, exercise or
delay in or refrain from exercising any right or remedy against any obligor or
any guarantor or any other Person, elect any remedy and otherwise deal freely
with any obligor and any security for such Senior Debt or any liability of any
obligor to the holders of such Senior Debt or any liability incurred in respect
of such Senior Debt.
(c) Each Holder by accepting a Security agrees not to compromise,
release, forgive or otherwise discharge the Company's Obligations with respect
to such Holder's Security unless holders of a majority of the outstanding amount
of each class of Senior Debt consent to such compromise, release, forgiveness or
discharge.
SECTION 9.09. Distribution or Notice to Representative. Whenever a
distribution is to be made, or a notice given, to holders of Senior Debt of the
Company, the distribution may be made and the notice given to their
Representative, if any. If any payment or distribution of the Company's assets
is required to be made to holders of any of the Company's Senior Debt pursuant
to this Article 9, the Trustee and the Holders shall be entitled to rely upon
any order or decree of any court of competent jurisdiction, or upon any
certificate of a Representative of such Senior Debt or a Custodian, in
ascertaining the holders of such Senior Debt entitled to participate in any such
payment or distribution, the amount to be paid or distributed to holders of such
Senior Debt and all other facts pertinent to such payment or distribution or to
this Article 9.
SECTION 9.10. Rights of Trustee and Paying Agent. The Trustee or paying
agent may continue to make payments on the Securities unless prior to any
payment date it has received written notice of facts that would cause a payment
of principal of, or premium, if any, or interest on, the Securities to violate
this Article 9. Only the
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Company, a representative of Senior Debt, or a holder of Senior Debt that has no
representative may give such notice.
To the extent permitted by the TIA, the Trustee in its individual or
any other capacity may hold Indebtedness of the Company (including Senior Debt)
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Nothing in this Article 9 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 5.07.
SECTION 9.11. Authorization to Effect Subordination. Each Holder of a
Security by its acceptance thereof authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 9, and appoints the Trustee as such
Holder's attorney-in-fact for any and all such purposes (including, without
limitation, the timely filing of a claim for the unpaid balance of the Security
that such Holder holds in the form required in any Insolvency or Liquidation
Proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
representative of any Senior Debt of the Company are hereby authorized, and
shall have the right (without any duty), to file an appropriate claim for and on
behalf of the Holders.
SECTION 9.12. Payment. A payment on account of or with respect to any
Security shall include, without limitation, any Additional Interest, principal,
premium or interest with respect to or in connection with any optional
redemption or purchase provisions, any direct or indirect payment payable by
reason of any other Indebtedness or Obligation being subordinated to the
Securities, and any direct or indirect payment or recovery on any claim as a
Holder relating to or arising out of this Indenture or any Security, or the
issuance of any Security, or the transactions contemplated by this Indenture or
referred to herein.
ARTICLE 10
REDEMPTION OF SECURITIES
SECTION 10.01. Right of Optional Redemption; Prices. On or after July
15, 2003, the Company at its option may, at any time, redeem all, or from time
to time any part of, the Securities upon payment of the optional redemption
prices set forth
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in the form of Security hereinabove recited, together with accrued and unpaid
interest to the date fixed for redemption.
In addition, prior to July 15, 2001, the Company may redeem up to 35%
of the principal amount of the Securities with the net cash proceeds received by
the Company from one or more Public Equity Offerings, at a redemption price of
109.5% of the principal amount thereof, plus accrued and unpaid interest to the
date fixed for redemption (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on an Interest Payment
Date that is on or prior to the redemption date); provided, however, that at
least 65% of the aggregate principal amount of the Securities originally issued
remains outstanding immediately after any such redemption (excluding any
Securities owned by the Company or any of its Affiliates). Notice of redemption
pursuant to this paragraph must be mailed to holders of Notes not later than 60
days following the consummation of such Public Equity Offering.
SECTION 10.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall identify the
Securities to be redeemed (including CUSIP numbers) and shall specify the
principal amount of each Security held by such Holder to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities to be redeemed at the option of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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No later than 12:00 noon (New York time) on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more paying agents, in
immediately available funds, (or, if the Company is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money sufficient to redeem on the redemption date all the Securities
so called for redemption at the appropriate redemption price, together with
accrued interest to the date fixed for redemption. The Company will deliver to
the Trustee at least 35 days prior to the date fixed for redemption (and no
later than 5 days prior to the mailing of notice of such redemption to the
Holders) an Officer's Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select, either pro rata, by lot or by any other method it shall deem fair and
reasonable, Securities to be redeemed in whole or in part. Securities may be
redeemed in part in multiples of $1,000 only. The Trustee shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 10.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.05 and 11.06, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semi-annual payment
of interest becoming due on the date fixed for redemption shall be payable to
the holders of such Securities registered as such on the relevant Interest
Record Date subject to the terms and provisions of Section 2.04 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate borne
by the Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 10.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may, at its option, by resolution of the Board of
Directors, at any time, elect to have either Section 11.02 or Section 11.03
applied to the outstanding Securities upon compliance with the conditions set
forth below in this Article 11.
SECTION 11.02. Legal Defeasance and Discharge. Upon the Company's
exercise under Section 11.01 hereof of the option applicable to this Section
11.02, the Company shall be deemed to have been discharged from its Obligations
with respect to all outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, "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 the outstanding Securities,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 11.05 hereof and the other Sections of this Indenture referred to in
clauses (i) and (ii) of this Section 11.02, and to have satisfied all its other
obligations under such Securities and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper
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instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of outstanding Securities to receive solely from the trust fund
described in Section 11.04 hereof, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's obligations with
respect to such Securities under Sections 2.01, 2.02, 2.05, 2.06, 2.07, 2.08,
2.09, 2.11, 3.01, 3.02, 3.04 and 11.05 hereof, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including, without limitation,
the Trustee's rights under Section 5.07 hereof, and the Company's obligations in
connection therewith and with this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option under this Section 11.02
notwithstanding the prior exercise of its option under Section 11.03 hereof with
respect to the Securities.
SECTION 11.03. Covenant Defeasance. Upon the Company's exercise under
Section 11.01 hereof of the option applicable to this Section 11.03, the Company
shall be released from their obligations under the covenants contained in
Sections 3.08 through 3.17 and clause (iv) of Section 8.01 hereof with respect
to the outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities
shall thereafter be deemed not outstanding for the purposes of any direction,
waiver, consent or 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. For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Securities, 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 covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 4.01(iii) or (iv) hereof, but, except as
specified above, the remainder of this Indenture, such Securities shall be
unaffected thereby. In addition, upon the Company's exercise under Section 11.01
hereof of the option applicable to this Section 11.03, Sections 4.01(v) and
4.01(vi) hereof shall not constitute Events of Default.
SECTION 11.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to application of either Section 11.02 or
Section 11.03 hereof to the outstanding Securities:
(i) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.10 who shall agree to comply with the
provisions of this Article 11 applicable to it) as trust funds in trust
for the purpose of making the following
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payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) cash in U.S.
Dollars in an amount, or (b) non-callable Government Securities that
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 U.S. Dollars in an
amount, or (c) a combination thereof, in such amounts, whether
deposited under clause (a), (b) or (c), as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof addressed and
delivered to the Trustee, to pay and discharge and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge the principal of, premium, if any, and interest on such
outstanding Securities on the stated maturity date of such principal or
installment of principal, premium, if any, or interest; provided that
the Company may deposit amounts sufficient to pay and discharge the
principal of, premium, if any and interest on such outstanding
Securities through a scheduled redemption date if the Company, at the
time of such deposit, causes to be addressed and delivered to the
Trustee a written certification of independent certified public
accountants verifying such sufficiency and irrevocably authorizes the
Trustee to issue a timely notice of redemption and to take such other
steps reasonably requested by the Trustee to ensure that such
redemption will be effectuated.
(ii) In the case of an election under Section 11.02 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
confirming that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the
date hereof, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such Legal Defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had
not occurred.
(iii) In the case of an election under Section 11.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
confirming that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred.
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(iv) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as Section 4.01(viii) or 4.01(ix) hereof is
concerned, at any time in the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(v) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by
which the Company or any of its Restricted Subsidiaries is bound (other
than a breach, violation or default resulting from the borrowing of
funds to be applied to such deposit).
(vi) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(vii) The Company shall have delivered to the Trustee an
Officer's Certificate stating that the deposit made by the Company
pursuant to its election under Section 11.02 or 11.03 hereof was not
made by the Company with the intent of preferring the Holders of the
Securities over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding creditors of the Company
or others.
(viii) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance under Section 11.02 hereof or the Covenant Defeasance under
Section 11.03 hereof (as the case may be) have been complied with as
contemplated by this Section 11.04.
SECTION 11.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 11.06 hereof, all
money and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 11.04 hereof in respect of the
outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any paying agent (including the Company
acting as paying agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal of,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 11.04 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 the outstanding
Securities.
Anything in this Article 11 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any money or non-callable Government Securities held by it as provided
in Section 11.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered and addressed to the Trustee (which may be the opinion delivered under
Section 11.04(i) hereof), are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 11.06. Repayment to the Company. Any money deposited with the
Trustee or any paying agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on its written
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such paying agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such paying agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 11.07. Reinstatement. If the Trustee or paying agent is unable
to apply any U.S. Dollars or non-callable Government Securities in accordance
with Section 11.02 or 11.03 hereof, as the case may be, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.02 or 11.03 hereof until such time
as the Trustee or paying agent is permitted to apply all such money in
accordance with Section 11.02 or 11.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of
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such Security to receive such payment from the money held by the Trustee or
paying agent.
ARTICLE 12
MISCELLANEOUS PROVISIONS
SECTION 12.01. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company, or of a Subsidiary thereof, or of
any successor, either directly or through the Company, or of a Subsidiary
thereof, or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 12.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders. Except as set forth in Section 12.09, nothing in this Indenture or
in the Securities, expressed or implied, shall give or be construed to give to
any person, firm or corporation, other than the parties hereto and their
successors and the holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the holders of the Securities.
SECTION 12.03. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind their successors and
assigns, whether so expressed or not.
SECTION 12.04. Notices and Demands on Company, Trustee and Holders. 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 of Securities
to or on the Company may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Company is filed by the Company with the Trustee)
to Republic Group Incorporated, 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxx 00000,
Attention: Xxxxx X. Xxxxxx. Any notice, direction, request or demand by the
Company or any
97
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. The Trustee may waive notice
to it of any provision herein, and such waiver shall be deemed to be for its
convenience and discretion. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 12.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
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 person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or
98
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or Opinion of Counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the Company,
upon the certificate, statement or opinion of or representations by an officer
or officers of the Company unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company unless such officer or counsel knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 12.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities or the date fixed
for redemption of any Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 12.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 12.08. New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all
99
purposes shall be construed in accordance with the laws of said State, except as
may otherwise be required by mandatory provisions of law.
SECTION 12.09. Third Party Beneficiaries. Holders of Senior Debt of the
Company are third party beneficiaries of this Indenture, and any of them (or
their representative) shall have the right to enforce the provisions of this
Indenture that benefit such holders.
SECTION 12.10. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 12.11. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of July 15, 1998.
REPUBLIC GROUP INCORPORATED,
as Company
By:/s/ XXXX XXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman & CEO
UMB BANK, N.A.
as Trustee
By:/s/ R. XXXXXXX XXXXXXXX
-------------------------------------
Name: R. Xxxxxxx Xxxxxxxx
Title: Vice President
101
EXHIBIT A
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------, ----
UMB BANK, N.A.
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: Republic Group Incorporated (the "Company")
9.50% Senior Subordinated Notes due 2008 (the "Securities")
-----------------------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
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. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------------
Authorized Signature
A-2
