EXHIBIT 4.1
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SILGAN CORPORATION,
as Issuer
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
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Indenture
Dated as of June 9, 1997
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9% Senior Subordinated Debentures due 2009
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CROSS-REFERENCE TABLE
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TIA Sections Indenture Sections
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(S) 310(a)(1)..................................... 7.10
(a)(2)..................................... 7.10
(b)........................................ 7.08
(S) 313(c)........................................ 7.06; 11.02
(S) 314(a)........................................ 4.17; 11.02
(a)(4)..................................... 4.16; 11.02
(c)(1)..................................... 11.03
(c)(2)..................................... 11.03
(e)........................................ 11.04
(S) 315(b)........................................ 7.05; 11.02
(S) 316(a)(1)(A).................................. 6.05
(a)(1)(B).................................. 6.04
(b)........................................ 6.07
(S) 317(a)(1)..................................... 6.08
(a)(2)..................................... 6.09
(S) 318(a)........................................ 11.01
(c)........................................ 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act......... 22
SECTION 1.03. Rules of Construction..................................... 22
ARTICLE TWO
THE DEBENTURES
SECTION 2.01. Form and Dating........................................... 23
SECTION 2.02. Restrictive Legends....................................... 24
SECTION 2.03. Execution, Authentication and Denominations............... 26
SECTION 2.04. Registrar and Paying Agent................................ 28
SECTION 2.05. Paying Agent to Hold Money in Trust....................... 28
SECTION 2.06. Transfer and Exchange..................................... 29
SECTION 2.07. Book-Entry Provisions for Global Debentures............... 30
SECTION 2.08. Special Transfer Provisions............................... 31
SECTION 2.09. Replacement Debentures.................................... 34
SECTION 2.10. Outstanding Debentures.................................... 35
SECTION 2.11. Temporary Debentures...................................... 35
SECTION 2.12. Cancellation.............................................. 36
SECTION 2.13. CUSIP Numbers............................................. 36
SECTION 2.14. Defaulted Interest........................................ 36
SECTION 2.15. Issuance of Additional Debentures ........................ 36
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption....................................... 37
SECTION 3.02. Notices to Trustee........................................ 37
SECTION 3.03. Selection of Debentures to Be Redeemed.................... 37
SECTION 3.04. Notice of Redemption...................................... 38
SECTION 3.05. Effect of Notice of Redemption............................ 39
SECTION 3.06. Deposit of Redemption Price............................... 39
SECTION 3.07. Payment of Debentures Called for Redemption............... 39
SECTION 3.08. Debentures Redeemed in Part............................... 40
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Note: The Table of Contents shall not for any purpose be deemed to be a part of
the Indenture.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Debentures..................................... 40
SECTION 4.02. Maintenance of Office or Agency........................... 40
SECTION 4.03. Limitation on Indebtedness................................ 41
SECTION 4.04. Limitation on Restricted Payments......................... 43
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries....................... 46
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries................................. 47
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries............................................ 47
SECTION 4.08. Limitation on Transactions with Stockholders
and Affiliates.......................................... 48
SECTION 4.09. Limitation on Liens....................................... 49
SECTION 4.10. Limitation on Asset Sales................................. 50
SECTION 4.11. Repurchase of Debentures upon a Change of Control......... 51
SECTION 4.12. Existence................................................. 51
SECTION 4.13. Payment of Taxes and Other Claims......................... 51
SECTION 4.14. Maintenance of Properties and Insurance................... 51
SECTION 4.15. Notice of Defaults........................................ 52
SECTION 4.16. Compliance Certificates................................... 52
SECTION 4.17. Commission Reports and Reports to Holders................. 53
SECTION 4.18. Waiver of Stay, Extension or Usury Laws................... 53
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc............................... 53
SECTION 5.02. Successor Substituted..................................... 55
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default......................................... 55
SECTION 6.02. Acceleration.............................................. 57
SECTION 6.03. Other Remedies............................................ 57
SECTION 6.04. Waiver of Past Defaults................................... 58
SECTION 6.05. Control by Majority....................................... 58
SECTION 6.06. Limitation on Suits....................................... 58
SECTION 6.07. Rights of Holders to Receive Payment...................... 59
SECTION 6.08. Collection Suit by Trustee................................ 59
SECTION 6.09. Trustee May File Proofs of Claim.......................... 59
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SECTION 6.10. Priorities................................................ 60
SECTION 6.11. Undertaking for Costs..................................... 60
SECTION 6.12. Restoration of Rights and Remedies........................ 60
SECTION 6.13. Rights and Remedies Cumulative............................ 61
SECTION 6.14. Delay or Omission Not Waiver.............................. 61
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General................................................... 61
SECTION 7.02. Certain Rights of Trustee................................. 61
SECTION 7.03. Individual Rights of Trustee.............................. 62
SECTION 7.04. Trustee's Disclaimer...................................... 63
SECTION 7.05. Notice of Default......................................... 63
SECTION 7.06. Reports by Trustee to Holders............................. 63
SECTION 7.07. Compensation and Indemnity................................ 63
SECTION 7.08. Replacement of Trustee.................................... 64
SECTION 7.09. Successor Trustee by Merger, Etc.......................... 64
SECTION 7.10. Eligibility............................................... 65
SECTION 7.11. Money Held in Trust....................................... 65
SECTION 7.12. Withholding Taxes......................................... 65
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations...................... 65
SECTION 8.02. Defeasance and Discharge of Indenture..................... 66
SECTION 8.03. Defeasance of Certain Obligations......................... 68
SECTION 8.04. Application of Trust Money................................ 70
SECTION 8.05. Repayment to Company...................................... 70
SECTION 8.06. Reinstatement............................................. 71
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders................................ 71
SECTION 9.02. With Consent of Holders................................... 72
SECTION 9.03. Revocation and Effect of Consent.......................... 73
SECTION 9.04. Notation on or Exchange of Debentures..................... 73
SECTION 9.05. Trustee to Sign Amendments, Etc........................... 73
SECTION 9.06. Conformity with Trust Indenture Act....................... 74
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ARTICLE TEN
SUBORDINATION OF DEBENTURES
SECTION 10.01. Debentures Subordinated to Senior Indebtedness........... 74
SECTION 10.02. No Payment on Debentures in Certain Circumstances........ 74
SECTION 10.03. Payment over Proceeds upon Dissolution, Etc.............. 76
SECTION 10.04. Subrogation.............................................. 77
SECTION 10.05. Obligations of Company Unconditional..................... 78
SECTION 10.06. Notice to Trustee........................................ 78
SECTION 10.07. Reliance on Judicial Order or Certificate of Liquidating
Agent.................................................. 79
SECTION 10.08. Trustee's Relation to Senior Indebtedness................ 79
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness....... 80
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination of
Debentures............................................. 80
SECTION 10.11. Not to Prevent Events of Default......................... 80
SECTION 10.12. Trustee's Compensation Not Prejudiced.................... 80
SECTION 10.13. No Waiver of Subordination Provisions.................... 81
SECTION 10.14. Payments May Be Paid Prior to Dissolution................ 81
SECTION 10.15. Consent of Holders of Senior Indebtedness Under the
Credit Agreement....................................... 81
SECTION 10.16. Trust Moneys Not Subordinated............................ 81
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939.............................. 82
SECTION 11.02. Notices.................................................. 82
SECTION 11.03. Certificate and Opinion as to Conditions Precedent....... 83
SECTION 11.04. Statements Required in Certificate or Opinion............ 83
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar.............. 83
SECTION 11.06. Payment Date Other Than a Business Day................... 84
SECTION 11.07. Governing Law............................................ 84
SECTION 11.08. No Adverse Interpretation of Other Agreements............ 84
SECTION 11.09. No Recourse Against Others............................... 84
SECTION 11.10. Successors............................................... 84
SECTION 11.11. Duplicate Originals...................................... 84
SECTION 11.12. Separability............................................. 85
SECTION 11.13. Table of Contents, Headings, Etc......................... 85
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EXHIBIT A Form of Note................................................. A-1
EXHIBIT B Form of Certificate.......................................... B-1
EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Non-QIB Accredited
Investors.......................................... C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S................. D-1
INDENTURE, dated as of June 9, 1997, between Silgan Corporation, a
Delaware corporation (the "Company"), and The First National Bank of Chicago, a
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national banking association, as Trustee (the "Trustee").
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RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $300,000,000 aggregate principal
amount of the Company's 9% Senior Subordinated Debentures due 2009 (the
"Debentures") issuable as provided in this Indenture. All things necessary to
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make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done, and the Company has done all things necessary to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee hereunder and duly issued by the Company, the valid obligations of the
Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939 that are required to be a part of and to
govern indentures qualified under the Trust Indenture Act of 1939.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, the Company and the Trustee, as
follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by a Restricted Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition; provided that Indebtedness of such Person which is
redeemed, defeased, retired or otherwise repaid at the time of or immediately
upon consummation of the transactions by which such Person becomes a Restricted
Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Company and its Restricted Subsidiaries
for such period determined in conformity with GAAP; provided that the following
items shall be excluded in computing
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Adjusted Consolidated Net Income (without duplication): (i) the net income (or
loss) of any Person (other than net income (or loss) attributable to a
Restricted Subsidiary) in which any Person (other than the Company or any of its
Restricted Subsidiaries) has a joint interest and the net income (or loss) of
any Unrestricted Subsidiary, except to the extent of the amount of dividends or
other distributions actually paid to the Company or any of its Restricted
Subsidiaries by such other Person or such Unrestricted Subsidiary during such
period; (ii) solely for the purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (C) of the first paragraph of
Section 4.04 (and in such case, except to the extent includable pursuant to
clause (i) above), the net income (or loss) of any Person accrued prior to the
date it becomes a Restricted Subsidiary or is merged into or consolidated with
the Company or any of its Restricted Subsidiaries or all or substantially all of
the property and assets of such Person are acquired by the Company or any of its
Restricted Subsidiaries; (iii) the net income (or loss) of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is not at the
time permitted by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary; (iv) any gains or losses (on an after-
tax basis) attributable to Asset Sales; (v) except for purposes of calculating
the amount of Restricted Payments that may be made pursuant to clause (C) of the
first paragraph of Section 4.04, any amount paid or accrued as dividends on
Preferred Stock of the Company or any Restricted Subsidiary owned by Persons
other than the Company and any of its Restricted Subsidiaries; and (vi) all
extraordinary gains and extraordinary losses; provided further that for purposes
of clause (iv) of the first paragraph of Section 4.04, in connection with any
Investment in a business, "Adjusted Consolidated Net Income" during the period
commencing with the first day of the fiscal quarter in which the Closing Date
occurs and ending on the last day of the last fiscal quarter preceding the
Transaction Date shall not be less than $100 million, unless actual Adjusted
Consolidated Net Income for such period is a loss, in which case Adjusted
Consolidated Net Income for such period shall be $100 million minus the amount
of such loss.
"Adjusted Consolidated Net Tangible Assets" means the total amount of
assets of the Company and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets after the Closing Date (excluding
write-ups in connection with accounting for acquisitions in conformity with
GAAP), after deducting therefrom (i) all current liabilities of the Company and
its Restricted Subsidiaries (excluding intercompany items) and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent
quarterly or annual consolidated balance sheet of the Company and its Restricted
Subsidiaries, prepared in conformity with GAAP and filed with the Commission or
provided to the Trustee pursuant to Section 4.17.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such
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Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) an investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries; provided that such
Person's primary business is related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the date of such
investment or (ii) an acquisition by the Company or any of its Restricted
Subsidiaries of the property and assets of any Person other than the Company or
any of its Restricted Subsidiaries that constitute substantially all of a
division, operating unit or line of business of such Person; provided that the
property and assets acquired are related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the date of such
acquisition.
"Asset Disposition" means the sale or other disposition by the Company
or any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary of the Company or (ii) all or substantially all of the
assets that constitute a division, operating unit or line of business of the
Company or any of its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course of business of the Company or such
Restricted Subsidiary and, in each case, that is not governed by Article Five;
provided that "Asset Sale" shall not include (a) sales or other dispositions of
inventory, receivables and other current assets, (b) sales or other dispositions
of assets for consideration at least equal to the fair market value of the
assets sold or disposed of, to the extent that the consideration received would
satisfy clause (B) of Section 4.10, (c) any Restricted Payments permitted by
Section 4.04, (d) sales, transfers or other dispositions of obsolete or worn out
equipment or spare parts or (e) during each fiscal year of the Company, other
sales, transfers or dispositions of assets having a fair market value not in
excess of $1,000,000.
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"Average Life" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Bank Agent" means Bankers Trust Company, or its successor as agent
for the lenders under the Credit Agreement.
"Board of Directors" means the Board of Directors of the Company or
any committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of
the rental obligations under a Capitalized Lease.
"Change of Control" means such time as (i) (a) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other
than MSLEF II, Xx. Xxxxxxxx, Mr. Silver and their respective Affiliates, becomes
the ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), of more than 40% of the total voting power of the Voting Stock of Holdings
and (b) MSLEF II, Xx. Xxxxxxxx, Mr. Silver and their respective Affiliates and
any spouse, parent, brother, sister or lineal descendant of Xx. Xxxxxxxx or Mr.
Silver beneficially own, directly or indirectly, less than 18% of the total
voting power of the Voting Stock of Holdings; (ii) individuals who on the
Closing Date constitute the Board of Directors (together with any new directors
whose election by the Board of Directors or whose
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nomination by the Board of Directors for election by Holdings' stockholders was
approved by a vote of at least a majority of the members of the Board of
Directors then in office who either were members of the Board of Directors on
the Closing Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors then in office or (iii) Holdings shall not beneficially own,
directly or indirectly, at least a majority of the outstanding Voting Stock of
the Company other than as a result of a Holdings Merger.
"Closing Date" means the date on which the Debentures are originally
issued under the Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
the Company (i) by its Chairman, a Vice Chairman, its President or a Vice
President and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee; provided, however, that such
written request or order may be signed by any two of the officers or directors
listed in clause (i) above in lieu of being signed by one of such officers or
directors listed in such clause (i) and one of the officers listed in clause
(ii) above.
"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income, (i) Consolidated Interest
Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets), (iii) depreciation expense, (iv) amortization expense and (v)
all other non-cash items reducing Adjusted Consolidated Net Income, less all
non-cash items increasing Adjusted Consolidated Net Income, all as determined on
a consolidated basis for the Company and its Restricted Subsidiaries in
conformity with GAAP; provided that, if any Restricted Subsidiary is not a
Wholly Owned Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the
extent not otherwise reduced in accordance with GAAP) by an amount equal
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to (A) the amount of the Adjusted Consolidated Net Income attributable to such
Restricted Subsidiary multiplied by (B) the quotient of (1) the number of shares
of outstanding Common Stock of such Restricted Subsidiary not owned on the last
day of such period by the Company or any of its Restricted Subsidiaries divided
by (2) the total number of shares of outstanding Common Stock of such Restricted
Subsidiary on the last day of such period.
"Consolidated Interest Expense" means, for any period, the aggregate
amount of interest in respect of Indebtedness (including, without limitation,
amortization of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements; and
Indebtedness that is Guaranteed or secured by the Company or any of its
Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or to be accrued by the Company and its Restricted Subsidiaries during such
period; excluding, however, any amount of such interest of any Restricted
Subsidiary if the net income of such Restricted Subsidiary is excluded in the
calculation of Adjusted Consolidated Net Income pursuant to clause (iii) of the
definition thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated
Net Income pursuant to clause (iii) of the definition thereof).
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of the Company and its Restricted Subsidiaries
(which shall be as of a date not more than 135 days prior to the date of such
computation, and which shall not take into account Unrestricted Subsidiaries),
less any amounts attributable to Disqualified Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the principal amount of any promissory notes receivable from the sale of the
Capital Stock of the Company or any of its Restricted Subsidiaries, each item to
be determined in conformity with GAAP (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"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 of this Indenture,
located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Services Division.
"Credit Agreement" means the credit agreement dated as of August 1,
1995, as amended, among the Company and certain of its subsidiaries, the lenders
named therein, the Bank Agent, as Administrative Agent and Co-Arranger, and Bank
of America Illinois, as Documentation Agent and Co-Arranger, together with the
related documents thereof (including without limitation any Guarantees and
security documents), in each case as such agreements may
7
be amended (including any amendment and restatement thereof), supplemented,
renewed, extended, substituted, replaced or otherwise modified from time to
time, including any agreement extending the maturity of, refinancing or
otherwise restructuring (including, but not limited to, the inclusion of
additional borrowers thereunder that are Subsidiaries of the Company) all or any
portion of the Indebtedness under such agreement or any successor agreement, as
such agreement may be amended, renewed, extended, substituted, replaced,
restated and otherwise modified from time to time.
"Credit Agreement Amount" means $1.2 billion.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement.
"Debentures" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Debentures" shall
include any Registered Debentures to be issued and exchanged for any Debentures
pursuant to the Registration Rights Agreement and this Indenture and, for
purposes of this Indenture, all Debentures and Registered Debentures shall vote
together as one series of Debentures under this Indenture.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" shall mean The Depository Trust Company, its nominees,
and their respective successors.
"Designated Senior Indebtedness" means (i) Indebtedness under the
Credit Agreement, including refinancings thereof and (ii) any other Indebtedness
constituting Senior Indebtedness that, at any date of determination, has an
aggregate principal amount of at least $50 million and is specifically
designated by the Company or the Successor Corporation in the instrument
creating or evidencing such Senior Indebtedness as "Designated Senior
Indebtedness."
"Disqualified Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Debentures, (ii) redeemable at the option of the
holder of such class or series of Capital Stock at any time prior to the Stated
Maturity of the Debentures or (iii) convertible into or exchangeable for Capital
Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Debentures; provided that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Debentures shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
8
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Section 4.10 and Section
4.11 and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Debentures as are required to be repurchased
pursuant to Section 4.10 and Section 4.11.
"11 3/4% Notes" means the 11 3/4% Senior Subordinated Notes due 2002
of the Company.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.10.
"Exchange Act" means the Securities Exchange Act of 1934.
"Exchange Debentures" means the 13 1/4% Subordinated Debentures
issuable in exchange for the 13 1/4% Preferred Stock.
"fair market value" means the price that would be paid in an arm's-
length transaction between an informed and willing seller under no compulsion to
sell and an informed and willing buyer under no compulsion to buy, as determined
(except with respect to amounts less than $1,000,001) in good faith by the Board
of Directors, whose determination shall be conclusive if evidenced by a Board
Resolution. Notwithstanding the foregoing, in the event that (1) the Company or
any of its Restricted Subsidiaries shall dedicate assets substantially to
products sold to any principal customer and (2) such customer shall require that
the Company or such Restricted Subsidiary grant such customer an option to
purchase such assets (or the entity owning such assets), then "fair market
value" shall, for purposes of Section 4.10, be deemed to be the price paid by
such customer for such assets or such entity.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date applied on a basis
consistent with the principles, methods, procedures and practices employed in
the preparation of Holdings' audited financial statements, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations contained or referred
to in the Indenture shall be computed in conformity with GAAP applied on a
consistent basis, except that calculations made for purposes of determining
compliance with the terms of the covenants and with other provisions of the
Indenture shall be made without giving effect to (i) the amortization or write
off of unamortized deferred financing costs and any premiums, fees or expenses
incurred in connection with the offering, redemption or early extinguishment of
the Debentures, the 13 1/4%
9
Preferred Stock, the 11 3/4% Notes, the 13 1/4% Debentures and the Credit
Agreement (but not any fees or expenses with respect to the Indebtedness
Incurred or Capital Stock issued after the date hereof to effect any such
redemption or early extinguishment) and (ii) except as otherwise provided, the
amortization of any amounts required or permitted by Accounting Principles Board
Opinion Nos. 16 and 17.
"Global Debentures" has the meaning provided in Section 2.01.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the registered holder of any Note.
"Holdings" means Silgan Holdings Inc.
"Holdings Merger" means the merger of the Company into Holdings.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following receipt by such
10
Person of a demand for reimbursement), (iv) all obligations of such Person to
pay the deferred and unpaid purchase price of property or services, which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all Capitalized Lease Obligations,
(vi) all Indebtedness of other Persons secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person; provided
that the amount of such Indebtedness shall be the lesser of (A) the fair market
value of such asset at such date of determination and (B) the amount of such
Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person
to the extent such Indebtedness is Guaranteed by such Person and (viii) to the
extent not otherwise included in this definition, obligations under Currency
Agreements and Interest Rate Agreements. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided (A) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at the time of its issuance as determined in
conformity with GAAP, (B) that money borrowed and set aside at the time of the
Incurrence of any Indebtedness in order to prefund the payment of the interest
on such Indebtedness shall not be deemed to be "Indebtedness," (C) that
Indebtedness shall not include any liability for federal, state, local or other
taxes and (D) in clarification of this definition, any unused commitment under
the Credit Agreement or any other agreement relating to Indebtedness shall not
be treated as outstanding.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Coverage Ratio" means, on any Transaction Date, the ratio of
(i) the aggregate amount of Consolidated EBITDA for the then most recent four
fiscal quarters prior to such Transaction Date for which reports have been filed
with the Commission pursuant to Section 4.17 (the "Four Quarter Period") to (ii)
the aggregate Consolidated Interest Expense during such Four Quarter Period. In
making the foregoing calculation, (A) pro forma effect shall be given to any
Indebtedness Incurred or repaid during the period (the "Reference Period")
commencing on the first day of the Four Quarter Period and ending on the
Transaction Date (other than Indebtedness Incurred or repaid under a revolving
credit or similar arrangement to the extent of the commitment thereunder (or
under any predecessor revolving credit or similar arrangement) in effect on the
last day of such Four Quarter Period unless any portion of such Indebtedness is
projected, in the reasonable judgment of the senior management of the Company,
to remain outstanding for a period in excess of 12 months from the date of the
Incurrence
11
thereof) and any Indebtedness to be repaid within 60 Business Days of the
Transaction Date (except to the extent such repayment will be financed by
Incurring Indebtedness after the Transaction Date), in each case as if such
Indebtedness had been Incurred or repaid on the first day of such Reference
Period; (B) Consolidated Interest Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on a pro forma basis
and bearing a floating interest rate shall be computed as if the rate in effect
on a date that is no more than 75 days prior to the Transaction Date (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months or, if
shorter, at least equal to the remaining term of such Indebtedness) had been the
applicable rate for the entire period; (C) pro forma effect shall be given to
Asset Dispositions and Asset Acquisitions (including giving pro forma effect to
the application of proceeds of any Asset Disposition) that occur during such
Reference Period as if they had occurred and such proceeds had been applied on
the first day of such Reference Period; provided that (x) with respect to Asset
Acquisitions, pro forma effect shall be given to any cost reductions the Company
anticipates if the Company delivers to the Trustee an Officers' Certificate
executed by the Chief Financial Officer of the Company certifying to and
describing and quantifying with reasonable specificity the cost reductions
expected to be attained within the first year after such Asset Acquisition and
(y) at the Company's election, in connection with any Asset Acquisition with
respect to which an income statement for the acquired assets for the preceding
four fiscal quarters is not available, the Company shall, in good faith, prepare
an estimated income statement for such four quarters and shall deliver to the
Trustee an Officers' Certificate and a certificate of an investment bank or
accounting firm of national standing expressly stating that, in their opinion,
such estimated income statement reasonably reflects the results that would have
occurred had such assets been purchased by the Company or a Restricted
Subsidiary on the first day of the Four Quarter Period and (D) pro forma effect
shall be given to asset dispositions and asset acquisitions (including giving
pro forma effect to the application of proceeds of any asset disposition) that
have been made by any Person that has become a Restricted Subsidiary or has been
merged with or into the Company or any Restricted Subsidiary during such
Reference Period and that would have constituted Asset Dispositions or Asset
Acquisitions had such transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions that occurred on the first day of such
Reference Period; provided that to the extent that clause (C) or (D) of this
sentence requires that pro forma effect be given to an Asset Acquisition or
Asset Disposition, such pro forma calculation shall be based upon the four full
fiscal quarters immediately preceding the Transaction Date of the Person, or
division, operating unit or line of business of the Person, that is acquired or
disposed for which financial information is available.
"Interest Payment Date" means each semiannual interest payment date on
June 1 and December 1 of each year, commencing December 1, 1997.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate
12
cap agreement, interest rate collar agreement, interest rate hedge agreement,
option or future contract or other similar agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall include
(i) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary and
(ii) the fair market value of the Capital Stock (or any other Investment), held
by the Company or any of its Restricted Subsidiaries, of (or in) any Person that
has ceased to be a Restricted Subsidiary, including without limitation, by
reason of any transaction permitted by clause (iii) of Section 4.06; provided
that the fair market value of the Investment remaining in any Person that has
ceased to be a Restricted Subsidiary shall not exceed the aggregate amount of
Investments previously made in such Person valued at the time such Investments
were made less the net reduction of such Investments as a result of any payments
or transfers of assets by such Person to the Company or its Restricted
Subsidiaries. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04, (i) "Investment" shall include the fair market value of the assets
(net of liabilities (other than liabilities to the Company or any of its
Restricted Subsidiaries)) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii) the fair
market value of the assets (net of liabilities (other than liabilities to the
Company or any of its Restricted Subsidiaries)) of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary shall be considered a reduction in outstanding Investments and (iii)
any property transferred to or from an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof or any
agreement to give any security interest).
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"MSLEF II" means The Xxxxxx Xxxxxxx Leveraged Equity Fund II, L.P., a
Delaware limited partnership.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the extent
13
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) related to such Asset Sale, (ii) provisions for all
taxes (whether or not such taxes will actually be paid or are payable) as a
result of such Asset Sale without regard to the consolidated results of
operations of the Company and its Restricted Subsidiaries, taken as a whole,
(iii) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (A) is secured by a Lien on the property
or assets sold or (B) is required to be paid as a result of such sale and (iv)
appropriate amounts to be provided by the Company or any Restricted Subsidiary
as a reserve against any liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
in conformity with GAAP and (b) with respect to any issuance or sale of Capital
Stock, the proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment obligations (to
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary) and proceeds from the conversion of other property received when
converted to cash or cash equivalents, net of attorney's fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Offer to Purchase" means an offer to purchase Debentures by the
Company from the Holders commenced by mailing a notice to the Trustee and each
Holder stating: (i) the covenant pursuant to which the offer is being made and
that all Debentures validly tendered will be accepted for payment on a pro rata
basis; (ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Payment Date"); (iii) that any Debenture not tendered
will continue to accrue interest pursuant to its terms; (iv) that, unless the
Company defaults in the payment of the purchase price, any Debenture accepted
for payment pursuant to the Offer to Purchase shall cease to accrue interest on
and after the Payment Date; (v) that Holders electing to have a Debenture
purchased pursuant to the Offer to Purchase will be required to surrender the
Debenture, together with the form entitled "Option of the Holder to Elect
Purchase" on the reverse side of the Debenture completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the
Business Day immediately preceding the Payment Date; (vi) that Holders will be
entitled to withdraw their election if the Paying Agent receives, not later than
the close of business on the third Business Day immediately preceding the
Payment Date, a telegram, facsimile transmission or letter setting forth the
name of such Holder, the
14
principal amount of Debentures delivered for purchase and a statement that such
Holder is withdrawing his election to have such Debentures purchased; and (vii)
that Holders whose Debentures are being purchased only in part will be issued
new Debentures equal in principal amount to the unpurchased portion of the
Debentures surrendered; provided that each Debenture purchased and each new
Debenture issued shall be in a principal amount of $1,000 or integral multiples
thereof. On the Payment Date, the Company shall (i) accept for payment on a pro
rata basis Debentures or portions thereof tendered pursuant to an Offer to
Purchase; (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Debentures or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Debentures or portions
thereof so accepted together with an Officers' Certificate specifying the
Debentures or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail to the Holders of Debentures so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail to such Holders a new Debenture equal in principal amount to any
unpurchased portion of the Debenture surrendered; provided that each Debenture
purchased and each new Debenture issued shall be in a principal amount of $1,000
or integral multiples thereof. The Company will publicly announce the results
of an Offer to Purchase as soon as practicable after the Payment Date. The
Trustee shall act as the Paying Agent for an Offer to Purchase. The Company
will comply with Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable, in the event that the Company is required to repurchase Debentures
pursuant to an Offer to Purchase.
"Officer" means, with respect to the Company, (i) the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, and (ii)
the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in clause
(ii) of the definition thereof. Each Officers' Certificate (other than
certificates provided pursuant to TIA Section 314(a)(4)) shall include the
statements provided for in TIA Section 314(e).
"Offshore Global Debenture" has the meaning provided in Section 2.01.
"Offshore Physical Debentures" has the meaning provided in Section
2.01.
"Opinion of Counsel" means a written opinion signed by legal counsel
who may be an employee of or counsel to the Company. Each such Opinion of
Counsel shall include the statements provided for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional
15
Paying Agent.
"Permitted Investment" means (i) an Investment in the Company or a
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such person's primary business is
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such Investment; (ii) Temporary Cash
Investments; (iii) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
in accordance with GAAP; (iv) stock, obligations or securities received in
satisfaction of judgments or in settlement of claims; (v) Investments, to the
extent the consideration therefor consists solely of the Common Stock of
Holdings; (vi) Currency Agreements and Interest Rate Agreements entered into to
protect against currency or interest rate fluctuations (but not Currency
Agreements and Interest Rate Agreements entered into for speculation); (vii)
Guarantees of Indebtedness of the Company and of Restricted Subsidiaries
permitted under Section 4.03; and (viii) loans to employees of the Company or
its Restricted Subsidiaries, not to exceed $3 million at any one time
outstanding.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (ii) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens (including a bank's unexercised right of set-off) arising in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made; (iii) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security; (iv) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations,
bankers' acceptances, surety and appeal bonds, government contracts, performance
and return-of-money bonds and other obligations of a similar nature incurred in
the ordinary course of business (exclusive of obligations for the payment of
borrowed money); (v) easements, rights-of-way, municipal and zoning ordinances
and similar charges, encumbrances, title defects or other irregularities that do
not materially interfere with the ordinary course of business of the Company and
its Restricted Subsidiaries, taken as a whole; (vi) Liens (including extensions
and renewals thereof) upon real or personal property acquired after the Closing
Date; provided that (a) such Lien is created solely for the purpose of securing
Indebtedness Incurred, in accordance with Section 4.03, to finance the cost
(including the cost of improvement or construction) of the item of property or
assets subject thereto and such Lien is created prior to, at the time of or
within six months after the later of the acquisition, the completion of
construction or the commencement of full operation of such
16
property, (b) the principal amount of the Indebtedness secured by such Lien does
not exceed 100% of such cost and (c) any such Lien shall not extend to or cover
any property or assets other than such item of property or assets and any
improvements on such item; (vii) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company and
its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering property
or assets under construction arising from progress or partial payments by a
customer of the Company or its Restricted Subsidiaries relating to such property
or assets; (ix) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease; (x) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xi) Liens on property
of, or on shares of Capital Stock or Indebtedness of, any Person existing at the
time such Person becomes, or becomes a part of, the Company or any Restricted
Subsidiary; provided that such Liens do not extend to or cover any property or
assets of the Company or any Restricted Subsidiary other than the property or
assets acquired; (xii) Liens in favor of the Company or any Restricted
Subsidiary; (xiii) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary that does not give rise to an
Event of Default; (xiv) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof; (xv) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods; (xvi) Liens
encumbering customary initial deposits and margin deposits, and other Liens that
are within the general parameters customary in the industry and incurred in the
ordinary course of business, in each case, securing Indebtedness under Interest
Rate Agreements and Currency Agreements and forward contracts, options, future
contracts, futures options or similar agreements or arrangements designed solely
to protect the Company or any of its Restricted Subsidiaries from fluctuations
in interest rates, currencies or the price of commodities; (xvii) Liens arising
out of conditional sale, title retention, consignment or similar arrangements
for the sale of goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business in accordance with the past
practices of the Company and its Restricted Subsidiaries prior to the Closing
Date; (xviii) Liens consisting of escrows or deposits in connection with
acquisitions or potential acquisitions; and (xix) Liens on or sales of
receivables.
"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.
"Physical Debentures" has the meaning provided in Section 2.01.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
17
stock.
"principal" of a debt security, including the Debentures, means the
principal amount due on the Stated Maturity as shown on such debt security.
"Payment Blockage Period" has the meaning provided in Section 10.02.
"Private Placement Legend" means the legend initially set forth on the
Debentures in the form set forth in Section 2.02.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Receivables Program" means, with respect to any Person, any accounts
receivable securitization program pursuant to which such Person receives
proceeds pursuant to a pledge, sale or other encumbrance of its accounts
receivable.
"Redemption Date" means, when used with respect to any Debenture to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Debenture to
be redeemed, the price at which such Debenture is to be redeemed pursuant to
this Indenture.
"Registered Debentures" means any securities of the Company containing
terms identical to the Debentures (except that such securities (i) will be
registered under the Securities Act and (ii) will not contain terms with respect
to transfer restrictions) that are issued and exchanged for the Debentures
pursuant to the Registration Rights Agreement.
"Registrar" has the meaning provided in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 9, 1997, between the Company and Xxxxxx Xxxxxxx &
Co. Incorporated.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15 or November 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means
the chairman
18
or any vice chairman of the board of directors, the chairman or any vice
chairman of the executive committee of the board of directors, the chairman of
the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section 4.04.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933.
"Security Register" has the meaning provided in Section 2.04.
"Senior Indebtedness" means the following obligations of the Company
or a Successor Corporation: (i) all Indebtedness and other monetary obligations
of the Company or a Successor Corporation under (or in respect of) the Credit
Agreement, any Interest Rate Agreement or any Currency Agreement, (ii) all other
Indebtedness of the Company or a Successor Corporation (other than Indebtedness
evidenced by the Debentures or the Exchange Debentures), including principal and
interest on such Indebtedness, unless such Indebtedness, by its terms or by the
terms of any agreement or instrument pursuant to which such Indebtedness is
issued, is pari passu with, or subordinated in right of payment to, the
Debentures and (iii) all fees, expenses and indemnities payable in connection
with the Credit Agreement, Currency Agreements and Interest Rate Agreements;
provided that the term "Senior Indebtedness" shall not include (a) any
Indebtedness of the Company or a Successor Corporation that, when Incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code, was without recourse to the Company or a Successor Corporation,
(b) any Indebtedness of the Company or a Successor Corporation to a Subsidiary
of the Company or a Successor Corporation or to a joint venture in which the
Company or a Successor Corporation has an interest, (c) any Indebtedness of the
Company or a Successor Corporation (other than such Indebtedness already
described in clause (i) above) of the type described in clause (ii) above and
not permitted by Section 4.03, (d) any repurchase, redemption or other
obligation in respect of Redeemable Stock, (e) any Indebtedness to any employee
or officer of the Company or a Successor Corporation or any of its Subsidiaries,
(f) any liability for federal, state, local or other taxes owed or owing by the
Company or a Successor Corporation or (g) any Trade Payables.
19
"Senior Indebtedness" will also include interest accruing subsequent to events
of bankruptcy of the Company or a Successor Corporation and its Subsidiaries at
the rate provided for in the document governing such Indebtedness, whether or
not such interest is an allowed claim enforceable against the debtor in a
bankruptcy case under federal bankruptcy law.
"Senior Subordinated Obligations" means any principal of, premium, if
any, or interest on or other amounts owing in resect of the Debentures payable
pursuant to the terms of the Debentures or upon acceleration, including any
amounts received upon the exercise of rights of rescission or other rights of
action (including claims for damages) or otherwise, to the extent relating to
the purchase price of the Debentures or amounts corresponding to such principal,
premium, if any, or interest on the Debentures.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"S&H" means S & H, Inc. and its successors.
"S&P" means Standard & Poor's Ratings Service and its successors.
"Stated Maturity" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Successor Corporation" is defined to mean (i) the surviving entity of
any Holdings Merger, (ii) Holdings, upon the assumption by Holdings of the
liabilities of the Company represented by the Debentures or (iii) any successor
corporation to Holdings that becomes the successor obligor on the Debentures,
whether by merger, consolidation, sale of assets, assumption of liabilities or
otherwise.
"Temporary Cash Investment" means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally
20
guaranteed by the United States of America or any agency thereof, (ii) time
deposit accounts, certificates of deposit and money market deposits maturing
within one year of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America,
and which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $50 million (or the foreign currency equivalent
thereof) and has outstanding debt which is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) 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 a bank
meeting the qualifications described in clause (ii) above, (iv) commercial
paper, maturing not more than one year after the date of acquisition, issued by
a corporation (other than an Affiliate of the Company) organized and in
existence under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America with a rating at
the time as of which any investment therein is made of "P-1" (or higher)
according to Moody's or "A-1" (or higher) according to S&P, and (v) securities
with maturities of one year 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 "A" by S&P or Moody's.
"13 1/4% Preferred Stock" means the 13 1/4% Exchangeable Preferred
Stock Mandatorily Redeemable 2006 of Holdings.
"13 1/4% Debentures" means the 13 1/4% Senior Discount Debentures due
2002 of Holdings.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
(15 U.S. Code (S)(S) 77aaa-77bbb), as in effect on the date this Indenture was
executed, except as provided in Section 9.06.
"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.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture
21
and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"U.S. Global Debentures" has the meaning provided in Section 2.01.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Debentures, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Physical Debentures" has the meaning provided in Section 2.01.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below; and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any Restricted Subsidiary; provided that (A) any Guarantee by the Company or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated
shall be deemed an "Incurrence" of such Indebtedness and an "Investment" by the
Company or such Restricted Subsidiary (or both, if applicable) at the time of
such designation; (B) either (I) the Subsidiary to be so designated has total
assets of $1,000 or less or (II) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.04 and (C) if
applicable, the Incurrence of Indebtedness and the Investment referred to in
clause (A) of this proviso would be permitted under Section 4.03 and Section
4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that (i) no Default or Event of Default shall
have occurred and be continuing at the time of or after giving effect to such
designation and (ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding
22
immediately after such designation would, if Incurred at such time, have been
permitted to be Incurred for all purposes of the Indenture. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person,
the ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
---------------------
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
23
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the plural
include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(vii) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the definition of GAAP set
forth in Section 1.01; and
(viii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE DEBENTURES
SECTION 2.01. Form and Dating. The Debentures and the Trustee's
---------------
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A. The Debentures may have notations, legends or endorsements
required by law, stock exchange agreements to which the Company is subject or
usage. The Company shall approve the form of the Debentures and any notation,
legend or endorsement on the Debentures. Each Debenture shall be dated the date
of its authentication.
The terms and provisions contained in the form of the Debentures
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Debentures offered and sold in reliance on Rule 144A shall be issued
initially in the form of two permanent global Debentures in registered form,
each substantially in the form set forth in Exhibit A (the "U.S. Global
-----------
Debentures"), deposited with the Trustee, as custodian for the Depositary, duly
----------
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Debentures 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.
Debentures offered and sold in offshore transactions in reliance on
Regulation S
24
shall be issued initially in the form of a single permanent global Debenture in
registered form substantially in the form set forth in Exhibit A (the "Offshore
--------
Global Debenture") deposited with the Trustee, as custodian for the Depositary,
----------------
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Offshore Global Debenture 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.
Debentures offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Debentures
in registered form in substantially the form set forth in Exhibit A (the "U.S.
----
Physical Debentures"). Debentures issued pursuant to Section 2.07 in exchange
-------------------
for interests in the Offshore Global Debenture shall be in the form of permanent
certificated Debentures in registered form substantially in the form set forth
in Exhibit A (the "Offshore Physical Debentures").
----------------------------
The Offshore Physical Debentures and U.S. Physical Debentures are
sometimes collectively referred to herein as the "Physical Debentures". The
-------------------
U.S. Global Debentures and the Offshore Global Debenture are sometimes
collectively referred to herein as the "Global Debentures".
-----------------
The definitive Debentures shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Debentures may be listed, all as determined by the Officers executing such
Debentures, as evidenced by their execution of such Debentures.
SECTION 2.02. Restrictive Legends. Unless and until a Debenture is
-------------------
exchanged for a Registered Debenture in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, (i) the
U.S. Global Debentures and each U.S. Physical Debenture shall bear the legend,
set forth below on the face thereof and (ii) the Offshore Physical Debentures
and the Offshore Global Debenture shall bear the legend set forth below on the
face thereof until at least 41 days (or a date otherwise in compliance with
Regulation S) after the Closing Date and receipt by the Company and the Trustee
of a certificate substantially in the form of Exhibit B hereto.
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN
25
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE DEBENTURES, RESELL OR
OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (A) TO SILGAN CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF DEBENTURES AT THE TIME OF TRANSFER OF LESS THAN $100,000, AN
OPINION OF COUNSEL ACCEPTABLE TO SILGAN CORPORATION THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS DEBENTURE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THE DEBENTURES, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND SILGAN CORPORATION 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 IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF
26
THIS DEBENTURE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Debenture, whether or not a Registered Debenture, 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 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 DEBENTURE 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 DEBENTURE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. The
-------------------------------------------
Debentures shall be executed by two Officers of the Company, at least one of
which shall occupy a position listed in clause (i) of the definition of Officer
herein. The signature of these Officers on the Debentures may be by facsimile
or manual signature in the name and on behalf of the Company.
If an Officer whose signature is on a Debenture no longer holds that
office at the time the Trustee or authenticating agent authenticates the
Debenture, the Debenture shall be valid nevertheless.
A Debenture shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the Debenture. The
signature shall be conclusive evidence that the Debenture has been authenticated
under this Indenture.
At any time and from time to time after the execution of this
Indenture, the
27
Trustee or an authenticating agent shall upon receipt of a Company Order
authenticate for original issue Debentures in the aggregate principal amount
specified in such Company Order; provided that the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company in
connection with such authentication of Debentures. Such Company Order shall
specify the amount of Debentures to be authenticated and the date on which the
original issue of Debentures is to be authenticated and in case of an issuance
of Debentures pursuant to Section 2.15, shall certify that such issuance is in
compliance with Article Four. The Opinion of Counsel shall be to the effect
that:
(a) that the form and terms of such Debentures have been established
by or pursuant to a Board Resolution or an indenture supplemental hereto in
conformity with the provisions of this Indenture;
(b) that such supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
binding obligation of the Company;
(c) that such Debentures, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company in accordance with their terms and will
be entitled to the benefits of this Indenture, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(d) that the Company has been duly incorporated in, and is a validly
existing corporation in good standing under the laws of, the State of
Delaware.
The Trustee may appoint an authenticating agent to authenticate
Debentures. An authenticating agent may authenticate Debentures whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such authenticating agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate
of the Company.
The Debentures shall be issuable only in registered form without
coupons and only in denominations of $1,000 in principal amount and any integral
multiple of $1,000 in excess thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain
--------------------------
an office or agency where Debentures may be presented for registration of
transfer or for exchange (the "Registrar"), an office or agency where Debentures
---------
may be presented for payment (the "Paying Agent") and an office or agency where
------------
notices and demands to or upon the Company
28
in respect of the Debentures and this Indenture may be served, which shall be in
the Borough of Manhattan, The City of New York. The Company shall cause the
Registrar to keep a register of the Debentures and of their transfer and
exchange (the "Security Register"). The Company may have one or more co-
-----------------
Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such agent
and any change in the address of such agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any agent upon written notice to
such agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor agent to such agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such agent until the appointment of a
successor agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-Registrar, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. If, at any
time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee on or before each Interest Payment Date and at such other times as
the Trustee may reasonably request, the names and addresses of the Holders as
they appear in the Security Register.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than
-----------------------------------
12:00 noon, New York City time, on each due date of the principal, premium, if
any, and interest on any Debentures, the Company shall deposit with the Paying
Agent money in immediately available funds sufficient to pay such principal,
premium, if any, and interest so becoming due. The Company shall require each
Paying Agent other than the Trustee to agree in writing that such Paying Agent
shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal of, premium, if any, and
interest on the Debentures (whether such money has been paid to it by the
Company or any other obligor on the Debentures), and such Paying Agent shall
promptly notify the Trustee of any default by the Company (or any other obligor
on the Debentures) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company or any
Subsidiary of the Company or any Affiliate of any of them acts as Paying Agent,
it will,
29
on or before each due date of any principal of, premium, if any, or interest on
the Debentures, segregate and hold in a separate trust fund for the benefit of
the Holders a sum of money sufficient to pay such principal, premium, if any, or
interest so becoming due until such sum of money shall be paid to such Holders
or otherwise disposed of as provided in this Indenture, and will promptly notify
the Trustee of its action or failure to act.
SECTION 2.06. Transfer and Exchange. The Debentures are issuable
---------------------
only in registered form. A Holder may transfer a Debenture 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 Debenture is registered as the owner thereof
for all purposes whether or not the Debenture 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 U.S. Global Debenture shall, by
acceptance of such U.S. Global Debenture, agree that transfers of beneficial
interests in such U.S. Global Debenture may be effected only through a book
entry system maintained by the Holder of such U.S. Global Debenture (or its
agent) and that ownership of a beneficial interest in the Debenture shall be
required to be reflected in a book entry. When Debentures 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 Debentures of other authorized
denominations (including an exchange of Debentures for Registered Debentures),
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided that no exchanges of
Debentures for Registered Debentures shall occur until a Registration Statement
shall have been declared effective by the Commission and that any Debentures
that are exchanged for Registered Debentures shall be cancelled by the Trustee.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Debentures at the Registrar's request. No
service charge shall be made for any registration of transfer or exchange or
redemption of the Debentures, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or other similar
governmental charge payable upon exchanges pursuant to Section 2.11, 3.08 or
9.04).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Debenture during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Debentures selected for redemption under Section 3.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Debenture so selected for redemption in whole or in part, except
the unredeemed portion of any Debenture being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Debentures. (a) The
-------------------------------------------
U.S.
30
Global Debentures and Offshore Global Debenture initially shall (i) be
registered in the name of the Depositary for such Global Debentures or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
-------------
have no rights under this Indenture with respect to any Global Debenture held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Debenture, 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
Debenture 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 Debenture.
(b) Transfers of a Global Debenture shall be limited to transfers of
such Global Debenture in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Debenture 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 Debentures and Offshore Physical Debentures shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Debentures or the Offshore Global Debenture, respectively, if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the U.S. Global Debentures or the Offshore Global Debenture, 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 has occurred and is continuing and the
Registrar has received a request to the foregoing effect from the Depositary.
(c) Any beneficial interest in one of the Global Debentures that is
transferred to a person who takes delivery in the form of an interest in the
other Global Debenture will, upon transfer, cease to be an interest in such
Global Debenture and become an interest in the other Global Debenture and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Debenture for as long as it remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of this
Section of a portion of the beneficial interests in a Global Debenture to
beneficial owners who are required to hold U.S. Physical Debentures, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of such Global Debenture in an amount equal to the principal
amount of the beneficial interest in such Global Debenture to be transferred,
and the Company shall execute, and the Trustee shall authenticate and deliver,
one or more Physical Debentures of like tenor and amount.
31
(e) In connection with the transfer of the entire U.S. Global
Debenture or Offshore Global Debenture to beneficial owners pursuant to
paragraph (b) of this Section, the U.S. Global Debenture or Offshore Global
Debenture, 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 Debenture or Offshore
Global Debenture, as the case may be, an equal aggregate principal amount of
U.S. Physical Debentures or Offshore Physical Debentures, as the case may be, of
authorized denominations.
(f) Any U.S. Physical Debenture delivered in exchange for an interest
in the U.S. Global Debenture pursuant to paragraph (b) or (d) of this Section
shall, except as otherwise provided by paragraph (f) of Section 2.08, bear the
legend regarding transfer restrictions applicable to the U.S. Physical Debenture
set forth in Section 2.02.
(g) Any Offshore Physical Debenture delivered in exchange for an
interest in the Offshore Global Debenture pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 2.08,
bear the legend regarding transfer restrictions applicable to the Offshore
Physical Debenture set forth in Section 2.02.
(h) The registered holder of a Global Debenture 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 Debentures.
(i) QIBs that are beneficial owners of interests in a U.S. Global
Debenture may receive Physical Debentures (which shall bear the Private
Placement Legend if required by Section 2.02) in accordance with the procedures
of the Depositary. In connection with the execution, authentication and
delivery of such Physical Debentures, the Registrar shall reflect on its books
and records a decrease in the principal amount of the relevant U.S. Global
Debenture equal to the principal amount of such Physical Debentures and the
Company shall execute and the Trustee shall authenticate and deliver one or more
Physical Debentures having an equal aggregate principal amount.
SECTION 2.08. Special Transfer Provisions. Unless and until a
---------------------------
Debenture is exchanged for an Registered Debenture in connection with an
effective Registration Statement pursuant to the Registration Rights Agreement,
the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
-------------------------------------------------------
following provisions shall apply with respect to the registration of any
proposed transfer of a Debenture to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Debenture,
whether or not
32
such Debenture bears the Private Placement Legend, if (x) the requested
transfer is after the time period referred to in Rule 144(k) under the
Securities Act as in effect with respect to such transfer or (y) the
proposed transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit C hereto and (B) if the aggregate
principal amount of the Debentures being transferred is less than $100,000
at the time of such transfer, an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Debenture, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
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 a decrease in the principal amount of the U.S. Global Debenture in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Debenture to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical
Debentures of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a U.S. Physical
Debenture or an interest in the U.S. Global Debenture to a QIB (excluding Non-
U.S. Persons):
(i) If the Debenture to be transferred consists of (x) U.S. Physical
Debentures, 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 Debenture 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 Debenture stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Debenture
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 Debenture, 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 Debenture
to be transferred consists of U.S. Physical Debentures, 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
33
records the date and an increase in the principal amount of the U.S. Global
Debenture in an amount equal to the principal amount of the U.S. Physical
Debentures to be transferred, and the Trustee shall cancel the U.S.
Physical Debenture so transferred.
(c) Transfers of Interests in the Offshore Global Debenture or
----------------------------------------------------------
Offshore Physical Debentures. The following provisions shall apply with respect
----------------------------
to any transfer of interests in the Offshore Global Debenture or Offshore
Physical Debentures to U.S. Persons:
(i) prior to the removal of the Private Placement Legend from the
Offshore Global Debenture or Offshore Physical Debentures pursuant to
Section 2.02, the Registrar shall refuse to register such transfer; and
(ii) after such removal, the Registrar shall register the transfer of
any such Debenture without requiring any additional certification.
(d) Intentionally Omitted.
(e) Transfers to Non-U.S. Persons at Any Time. The following
-----------------------------------------
provisions shall apply with respect to any transfer of a Debenture to a Non-U.S.
Person:
(i) Prior to July 20, 1997, the Registrar shall register any proposed
transfer of a Debenture to any Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit D from the proposed
transferor.
(ii) On and after July 20, 1997, the Registrar shall register any
proposed transfer to any Non-U.S. Person if the Debenture to be transferred
is a U.S. Physical Debenture or an interest in the U.S. Global Debenture
only upon receipt of a certificate substantially in the form of Exhibit D
from the proposed transferor.
(iii) (a) If the proposed Transferor is an Agent Member holding a
beneficial interest in the U.S. Global Debenture, upon receipt by the
Registrar of (x) the documents required by paragraph (i) 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 at maturity of the U.S. Global
Debenture in an amount equal to the principal amount at maturity of the
beneficial interest in the U.S. Global Debenture 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 at maturity of the
Offshore Global Debenture in an amount equal to the principal amount at
maturity of the U.S. Physical Debentures or the U.S. Global Debentures, as
the case may be, to be transferred, and the Trustee shall cancel the
Physical Debenture, if any, so transferred
34
or decrease the amount of the U.S. Global Debenture.
(f) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Debentures not bearing the Private Placement Legend, the
Registrar shall deliver Debentures that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Debentures bearing the
Private Placement Legend, the Registrar shall deliver only Debentures that bear
the Private Placement Legend unless either (i) the Private Placement Legend is
not required by Section 2.02 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.
(g) General. By its acceptance of any Debenture bearing the Private
-------
Placement Legend, each Holder of such a Debenture acknowledges the restrictions
on transfer of such Debenture set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Debenture only as
provided in this Indenture. The Registrar shall not register a transfer of any
Debenture unless such transfer complies with the restrictions on transfer of
such Debenture set forth in this Indenture. In connection with any transfer of
Debentures, each Holder agrees by its acceptance of the Debentures 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 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.
SECTION 2.09. Replacement Debentures. If a mutilated Debenture is
----------------------
surrendered to the Trustee or if the Holder claims that the Debenture has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Debenture of like tenor and principal amount
and bearing a number not contemporaneously outstanding. If required by the
Trustee or the Company, an indemnity bond must be furnished that is sufficient
in the judgment of both the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss that any of them may suffer if a Debenture is
replaced. The Company may charge such Holder for its expenses and the expenses
of the Trustee in replacing a Debenture. In case any such mutilated, lost,
destroyed or wrongfully taken Debenture has become or is about to become due and
payable, the Company in its discretion may pay such Debenture instead of issuing
a new Debenture in replacement thereof.
35
Every replacement Debenture is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Debentures. Debentures outstanding at any
----------------------
time are all Debentures that have been authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation and those
described in this Section 2.10 as not outstanding.
If a Debenture is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Debenture is held by a bona fide
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay Debentures payable
on that date, then on and after that date such Debentures cease to be
outstanding and interest on them shall cease to accrue.
A Debenture does not cease to be outstanding because the Company or
one of its Affiliates holds such Debenture, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Debentures have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debentures owned by the Company or any
other obligor upon the Debentures or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Debentures which the Trustee knows to be so owned shall be so disregarded.
Debentures 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 Debentures and that the pledgee
is not the Company or any other obligor upon the Debentures or any Affiliate of
the Company or of such other obligor.
SECTION 2.11. Temporary Debentures. Until definitive Debentures are
--------------------
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Debentures. Temporary Debentures shall be substantially in the form
of definitive Debentures but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officers executing the
temporary Debentures, as evidenced by their execution of such temporary
Debentures. If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the temporary
Debentures at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debentures of authorized denominations. Until so
exchanged, the temporary Debentures shall be entitled to the same
36
benefits under this Indenture as definitive Debentures.
SECTION 2.12. Cancellation. The Company at any time may deliver to
------------
the Trustee for cancellation any Debentures previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Debentures
previously authenticated hereunder which the Company has not issued and sold.
The Registrar and the Paying Agent shall forward to the Trustee any Debentures
surrendered to them for transfer, exchange or payment. The Trustee shall cancel
all Debentures surrendered for transfer, exchange, payment or cancellation and
shall destroy them in accordance with its normal procedure. The Company may not
issue new Debentures to replace Debentures it has paid in full or delivered to
the Trustee for cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Debentures
-------------
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
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Debentures 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 Debentures.
SECTION 2.14. Defaulted Interest. If the Company defaults in a
------------------
payment of interest on the Debentures, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect
to the payment of any defaulted interest, shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest to be paid.
SECTION 2.15. Issuance of Additional Debentures. The Company may,
---------------------------------
subject to Article Four of this Indenture, issue additional Debentures under
this Indenture. The Debentures issued on the Closing Date and any additional
Debentures subsequently issued shall be treated as a single class for all
purposes under this Indenture.
37
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption. The Debentures may be redeemed at
-------------------
the election of the Company, in whole or in part, at any time and from time to
time on or after June 1, 2002 and prior to maturity, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's last
address as it appears in the Security Register, at the following Redemption
Prices (expressed in percentages of their principal amount), plus accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date that is on or prior to the
Redemption Date to receive interest due on an Interest Payment Date) if redeemed
during the 12-month period commencing on June 1 of the years set forth below:
Year Redemption Price
---- ----------------
2002........................ 104.500%
2003........................ 103.375%
2004........................ 102.250%
2005........................ 101.125%
2006 and thereafter......... 100.000%
In addition, at any time prior to June 1, 2000, the Company may redeem
up to 35% of the principal amount of the Debentures with the proceeds of one or
more public equity offerings of Common Stock of Holdings (to the extent Holdings
makes a capital contribution thereof to the Company) or the Successor
Corporation, at any time or from time to time in part, at a Redemption Price
(expressed as a percentage of principal amount) of 109.000%, plus accrued and
unpaid interest to the Redemption Date (subject to the rights of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date); provided that at least
$195 million aggregate principal amount of Debentures remains outstanding after
each such redemption.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
------------------
Debentures pursuant to Section 3.01, it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Debentures to be redeemed.
The Company shall give each notice provided for in this Section 3.02
in an Officers' Certificate at least 45 days before the Redemption Date (unless
a shorter period shall be satisfactory to the Trustee).
SECTION 3.03. Selection of Debentures to Be Redeemed. If less than
--------------------------------------
all of the Debentures are to be redeemed at any time, the Trustee shall select
the Debentures to be redeemed in compliance with the requirements, as certified
to it by the Company, of the principal national securities exchange, if any, on
which the Debentures are listed or, if the
38
Debentures are not listed on a national securities exchange, on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem fair and appropriate; provided that no Debentures of $1,000 in
principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Debentures outstanding
and not previously called for redemption. Debentures in denominations of $1,000
in principal amount may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 in principal amount or any integral
multiple thereof) of Debentures that have denominations larger than $1,000 in
principal amount. Provisions of this Indenture that apply to Debentures called
for redemption also apply to portions of Debentures called for redemption. The
Trustee shall notify the Company and the Registrar promptly in writing of the
Debentures or portions of Debentures to be called for redemption.
SECTION 3.04. Notice of Redemption. With respect to any redemption
--------------------
of Debentures pursuant to Section 3.01, at least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first class mail to each Holder whose Debentures are to be redeemed.
The notice shall identify the Debentures to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Debentures called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Debentures called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders
is to receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Debentures to the Paying Agent;
(vi) that, if any Debenture is being redeemed in part, the portion of
the principal amount (equal to $1,000 in principal amount or any integral
multiple thereof) of such Debenture to be redeemed and that, on and after
the Redemption Date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof will
be reissued; and
(vii) that, if any Debenture contains a CUSIP number as provided in
39
Section 2.13, no representation is being made as to the correctness of the
CUSIP number either as printed on the Debentures or as contained in the
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Debentures.
At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders, the Company shall concurrently deliver to the Trustee an Officers'
Certificate stating that such notice has been given.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Debentures called for redemption become due and payable on
the Redemption Date and at the Redemption Price. Upon surrender of any
Debentures to the Paying Agent, such Debentures shall be paid at the Redemption
Price, plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Debentures held by Holders to whom such notice was
properly given.
SECTION 3.06. Deposit of Redemption Price. On or prior to any
---------------------------
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall segregate and hold in trust as
provided in Section 2.05) money sufficient to pay the Redemption Price of and
accrued interest on all Debentures to be redeemed on that date other than
Debentures or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.07. Payment of Debentures Called for Redemption. If notice
-------------------------------------------
of redemption has been given in the manner provided above, the Debentures or
portion of Debentures specified in such notice to be redeemed shall become due
and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Debentures at the
Redemption Price and accrued interest to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Debentures), such Debentures shall cease to accrue interest.
Upon surrender of any Debenture for redemption in accordance with a notice of
redemption, such Debenture shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided that installments of interest whose Stated
40
Maturity is on or prior to the Redemption Date shall be payable to the Holders
registered as such at the close of business on the relevant Regular Record Date.
SECTION 3.08. Debentures Redeemed in Part. Upon surrender of any
---------------------------
Debenture that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Debenture equal in principal
amount to the unredeemed portion of such surrendered Debenture.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Debentures. The Company shall pay the
---------------------
principal of, premium, if any, and interest on the Debentures on the dates and
in the manner provided in the Debentures and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date money designated
for and sufficient to pay the installment. If the Company or any Subsidiary of
the Company or any Affiliate of any of them, acts as Paying Agent, an
installment of principal, premium, if any, or interest shall be considered paid
on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee shall serve as the
Paying Agent, if any, for the Debentures.
The Company shall pay interest on overdue principal, premium, if any,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Debentures.
SECTION 4.02. Maintenance of Office or Agency. The Company will
-------------------------------
maintain in the Borough of Manhattan, The City of New York an office or agency
where Debentures may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Debentures and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the
00
Xxxxxxx xx Xxxxxxxxx, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby initially designates The First National Bank of
Chicago c/o First Chicago Trust Company of New York, 00 Xxxx Xxxxxx, 0xx Xxxxx,
Window 2, Xxx Xxxx, XX 00000, located in the Borough of Manhattan, The City of
New York, as such office of the Company in accordance with Section 2.04.
SECTION 4.03. Limitation on Indebtedness. (a) The Company will not,
--------------------------
and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (other than the Debentures and Indebtedness existing on the Closing
Date); provided that the Company and its Restricted Subsidiaries may Incur
Indebtedness if, after giving effect to the Incurrence of such Indebtedness and
the receipt and application of the proceeds therefrom, the Interest Coverage
Ratio would be greater than 2.0:1.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary may Incur each and all of the following: (i) Indebtedness in an
aggregate principal amount not to exceed, at any one time outstanding, the
Credit Agreement Amount, less any amount of such Indebtedness permanently repaid
as provided under Section 4.10; (ii) Indebtedness owed (A) to the Company
evidenced by a promissory note or (B) to any of its Restricted Subsidiaries;
provided that any event which results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness
(other than to the Company or another Restricted Subsidiary) shall be deemed, in
each case, to constitute an Incurrence of such Indebtedness not permitted by
this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds
of which are used to refinance or refund, then outstanding Indebtedness (other
than Indebtedness Incurred under clause (i), (ii), (iv), (vii), (ix) or (x) of
this paragraph) and any refinancings thereof in an amount not to exceed the
amount so refinanced or refunded (plus premiums, accrued interest, fees and
expenses); provided that Indebtedness the proceeds of which are used to
refinance or refund the Debentures or Indebtedness that is pari passu with, or
subordinated in right of payment to, the Debentures shall only be permitted
under this clause (iii) if (A) in case the Debentures are refinanced in part or
the Indebtedness to be refinanced is pari passu with the Debentures, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is outstanding, is expressly made pari
passu with, or subordinate in right of payment to, the remaining Debentures, (B)
in case the Indebtedness to be refinanced is subordinated in right of payment to
the Debentures, such new Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such new Indebtedness is issued or
remains outstanding, is expressly made subordinate in right of payment to the
Debentures remaining outstanding at least to the extent that the Indebtedness to
be refinanced is subordinated to the Debentures and (C) such new Indebtedness,
determined as of the date of Incurrence of such new Indebtedness, does not
mature prior to the Stated Maturity of the Indebtedness to be refinanced or
refunded,
42
and the Average Life of such new Indebtedness is at least equal to the remaining
Average Life of the Indebtedness to be refinanced or refunded; provided however,
that with respect to the refinancing of the Exchange Debentures, the
requirements of clauses (B) and (C) of this clause (iii) and the next subsequent
proviso of this clause (iii) shall not be applicable if, pro forma for such
refinancing, the Company would be permitted to Incur $1.00 of Indebtedness under
the first paragraph of this Section 4.03 (a); and provided further that in no
event may Indebtedness of the Company that is pari passu with, or subordinated
to, the Debentures be refinanced by means of any Indebtedness of any Restricted
Subsidiary pursuant to this clause (iii); (iv) Indebtedness (A) in respect of
performance, surety or appeal bonds provided in the ordinary course of business,
(B) under Currency Agreements, Interest Rate Agreements and commodity hedging
agreements; provided that such agreements (a) are designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in foreign currency
exchange rates, interest rates or commodity prices and (b) do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates, interest rates or by reason of
fees, indemnities and compensation payable thereunder; and (C) 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 any 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; (v) Indebtedness of the Company, to the
extent the net proceeds thereof are promptly (A) used to purchase Debentures
tendered in an Offer to Purchase made as a result of a Change in Control or (B)
deposited to defease the Debentures as described below in Section 8.02; (vi) the
issuance of Exchange Debentures (A) in exchange for the 13 1/4% Preferred Stock
and (B) in satisfaction of payment-in-kind interest obligations on outstanding
Exchange Debentures; (vii) Guarantees of Indebtedness of the Company and
Restricted Subsidiaries to the extent such Indebtedness is otherwise permitted
to be Incurred under this Section 4.03 (a), provided that in the case of a
Guarantee by a Restricted Subsidiary, such Restricted Subsidiary complies with
Section 4.07 to the extent applicable; (viii) obligations in respect of letters
of credit not to exceed $30 million outstanding at any one time; and (ix) other
Indebtedness in an aggregate principal amount not to exceed $25 million
outstanding at any one time.
(b) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
Incur pursuant to this Section 4.03 shall not be deemed to be exceeded with
respect to any outstanding Indebtedness solely as a result of fluctuations in
the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness
under this Section 4.03, (1) Indebtedness Incurred under the Credit Agreement on
or prior to the
43
Closing Date shall be treated as Incurred pursuant to clause (i) of the second
paragraph of this Section 4.03, (2) Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (3) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.09
shall not be treated as Indebtedness. For purposes of determining compliance
with this Section 4.03, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the above
clauses, the Company, in its sole discretion, shall classify such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses. The Company shall not Incur any
Indebtedness that is expressly subordinated to any other Indebtedness of the
Company unless such Indebtedness, by its terms or the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, is also expressly made
subordinate to the Debentures at least to the extent that it is subordinated to
such other Indebtedness.
(d) Notwithstanding any of the foregoing, nothing in this Section 4.03
shall prohibit the occurrence of the Holdings Merger. Immediately upon the
occurrence of the Holdings Merger, this part (d) of this Section 4.03 shall be
of no further force and effect, and all references to the Company in this
Section 4.03 shall refer to the Successor Corporation.
SECTION 4.04. Limitation on Restricted Payments. The Company will
---------------------------------
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on or with respect to
its Capital Stock (other than (x) dividends or distributions payable solely in
shares of its Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to acquire shares of such Capital Stock and (y) pro
rata dividends or distributions on Common Stock of Restricted Subsidiaries held
by minority stockholders, provided that such dividends do not in the aggregate
exceed the minority stockholders' pro rata share of such Restricted
Subsidiaries' net income from the first day of the fiscal quarter beginning
immediately following the Closing Date) held by Persons other than the Company
or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of (A) the Company or an
Unrestricted Subsidiary (including options, warrants or other rights to acquire
such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary
(including options, warrants or other rights to acquire such shares of Capital
Stock) held by any Affiliate of the Company (other than a Wholly Owned
Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or
more of the Capital Stock of the Company, (iii) make any voluntary or optional
principal payment, or voluntary or optional redemption, repurchase, defeasance,
or other acquisition or retirement for value, of Indebtedness of the Company
that is subordinated in right of payment to the Debentures or (iv) make any
Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (i) through (iv) above being collectively
"Restricted Payments") if, at the time of, and after giving effect to, the
proposed Restricted Payment: (A) a Default or Event of Default shall have
occurred and be continuing, (B) the Company could not Incur at least $1.00 of
Indebtedness under the first paragraph of Section
44
4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if
other than in cash, to be determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution)
made after the Closing Date shall exceed the sum of (1) 50% of the aggregate
amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated
Net Income is a loss, minus 100% of the amount of such loss) (determined by
excluding income resulting from transfers of assets by the Company or a
Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative
basis during the period (taken as one accounting period) beginning on the first
day of the fiscal quarter in which the Closing Date occurs and ending on the
last day of the last fiscal quarter preceding the Transaction Date for which
reports have been filed with the Commission or provided to the Trustee pursuant
to Section 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company
after the Closing Date from capital contributions or from the issuance and sale
permitted by the Indenture of its Capital Stock (other than Disqualified Stock)
to a Person who is not a Subsidiary of the Company, including an issuance or
sale permitted by the Indenture of Indebtedness of the Company for cash
subsequent to the Closing Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of the Company, or from the
issuance to a Person who is not a Subsidiary of the Company of any options,
warrants or other rights to acquire Capital Stock of the Company (in each case,
exclusive of any Disqualified Stock or any options, warrants or other rights
that are redeemable at the option of the holder, or are required to be redeemed,
prior to the Stated Maturity of the Debentures) plus (3) an amount equal to the
net reduction in Investments (other than reductions in Permitted Investments and
Investments made pursuant to the next paragraph) in any Person resulting from
payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other transfers of assets, in each case to the Company or any
Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such
Investment (except, in each case, to the extent any such payment or proceeds are
included in the calculation of Adjusted Consolidated Net Income), or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued
in each case as provided in the definition of "Investments"), not to exceed, in
each case, the amount of Investments previously made by the Company or any
Restricted Subsidiary in such Person or Unrestricted Subsidiary plus (4) $25
million.
The foregoing provision shall not be violated by reason of: (i) the
payment of any dividend or the consummation of any irrevocable redemption within
60 days after the date of declaration of such dividend or the giving of any
notice of irrevocable redemption, as the case may be, if, at said date of
declaration or the giving of such notice, as the case may be, such payment or
redemption, as the case may be, would comply with the foregoing paragraph; (ii)
the redemption, repurchase, defeasance or other acquisition or retirement for
value of Indebtedness that is subordinated in right of payment to the Debentures
including premium, if any, and accrued and unpaid interest, with the proceeds
of, or in exchange for, Indebtedness Incurred under clause (iii) of the second
paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other
acquisition of Capital Stock of the Company (or options, warrants or other
rights to acquire such Capital Stock) in exchange for, or out of the proceeds of
a substantially
45
concurrent offering of, shares of Capital Stock (other than Disqualified Stock)
of the Company (or options, warrants or other rights to acquire such Capital
Stock); (iv) the making of any principal payment or the repurchase, redemption,
retirement, defeasance or other acquisition for value of Indebtedness of the
Company which is subordinated in right of payment to the Debentures in exchange
for, or out of the proceeds of a substantially concurrent offering of, shares of
Capital Stock (other than Disqualified Stock) of Holdings (or options, warrants
or other rights to acquire such Capital Stock), in an amount not to exceed 100%
of the net cash proceeds of such offering that are contributed to the Company or
the Successor Corporation, plus the amount of any premiums applicable thereto;
(v) payments or distributions, to dissenting stockholders pursuant to applicable
law, pursuant to or in connection with a consolidation, merger or transfer of
assets that complies with Article Five; (vi) the purchase, redemption,
acquisition, cancellation or other retirement for value of shares of Capital
Stock of Holdings, the Company or any other Restricted Subsidiary, options on
any such shares or related stock appreciation rights or similar securities held
by officers or employees or former officers or employees (or their estates or
beneficiaries under their estates) and which were issued pursuant to any Stock
Based Plan, upon death, disability, retirement or termination of employment or
pursuant to the terms of such Stock Based Plan or any other agreement under
which such Capital Stock, options, related rights or similar securities were
issued; provided that the aggregate cash consideration paid for such purchase,
redemption, acquisition, cancellation or other retirement for value of such
shares of Capital Stock, options, related rights or similar securities after the
Closing Date does not exceed $3 million; (vii) Investments, not to exceed $25
million at any one time outstanding; or (viii) the declaration and payment of
dividends on Common Stock in an amount not to exceed 6% per annum of the
aggregate of the net proceeds received by Holdings in its initial public
offering and the next $35 million of proceeds received upon the issuance of
Common Stock of Holdings or a Successor Corporation; or (ix) the issuance of the
Exchange Debentures in exchange for the 13 1/4% Preferred Stock; provided that,
except in the case of clauses (i), (ii), (iii), (v) and (ix), no Default or
Event of Default shall have occurred and be continuing or occur as a consequence
of the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (iii) or (iv) thereof, an Investment referred to in clause (vii) thereof
and the Restricted Payment specified in clause (ix) thereof), and the Net Cash
Proceeds from any issuance of Capital Stock referred to in clauses (iii) and
(iv), shall be included in calculating whether the conditions of clause (C) of
the first paragraph of this Section 4.04 have been met with respect to any
subsequent Restricted Payments. In the event the proceeds of an issuance of
Capital Stock of the Company are used for the redemption, repurchase or other
acquisition of the Debentures, or Indebtedness that is pari passu with the
Debentures, then the Net Cash Proceeds of such issuance shall be included in
clause (C) of the first paragraph of this Section 4.04 only to the extent such
proceeds are not used for such redemption, repurchase or other acquisition of
Indebtedness.
46
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
-----------------------------------------------------
Affecting Restricted Subsidiaries. The Company will not, and will not permit
---------------------------------
any Restricted Subsidiary to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Closing Date in the Credit Agreement, the
Indenture or any other agreements in effect on the Closing Date, and any
modifications, extensions, refinancings, substitutions, renewals or replacements
of such agreements; provided that the encumbrances and restrictions in any such
modifications, extensions, refinancings, substitutions, renewals or replacements
are no less favorable in any material respect to the Holders than those
encumbrances or restrictions that are then in effect and that are being
modified, substituted, extended, refinanced, renewed or replaced; (ii) existing
under or by reason of applicable law; (iii) existing with respect to any Person
or the property or assets of such Person acquired by the Company or any
Restricted Subsidiary, existing at the time of such acquisition and not incurred
in contemplation thereof, which encumbrances or restrictions are not applicable
to any Person or the property or assets of any Person other than such Person or
the property or assets of such Person so acquired; (iv) in the case of clause
(iv) of the first paragraph of this Section 4.05, (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or asset
that is a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by the Indenture or (C) arising
or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary in
any manner material to the Company or any Restricted Subsidiary; (v) with
respect to a Restricted Subsidiary and imposed pursuant to 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, such Restricted Subsidiary; (vi)
agreements with principal customers restricting the transfer of assets (or
entities owning assets) substantially dedicated to products sold to such
customers; (vii) with respect to any Restricted Subsidiary that is intended to
be a special purpose financing entity and into which the Company and the other
Restricted Subsidiaries do not make any material Investment of assets other than
accounts receivable and, to the extent required by the financing agreements of
such Restricted Subsidiary, cash; or (viii) contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued (in
each case by a Restricted Subsidiary in compliance with Section 4.03) if (A) the
encumbrance or restriction applies only in the event of a payment default or a
default with respect to a financial covenant contained in such Indebtedness or
agreement, (B) the
47
encumbrance or restriction is not materially more disadvantageous to the Holders
of the Debentures than is customary in comparable financings (as determined by
the Company), (C) the Company determines that any such encumbrance or
restriction will not materially affect its ability to make principal or interest
payments on the Debentures, (D) such encumbrance or restriction expressly states
that such Restricted Subsidiary shall be entitled to take the actions referred
to in clauses (i) through (iv) of the first paragraph of this Section 4.05 in an
amount not to exceed 50% of the consolidated net income of such Restricted
Subsidiary (after making adjustments thereto in the nature of the adjustments
referred to in the definition of "Adjusted Consolidated Net Income") and (E) the
Investments made by the Company and its Restricted Subsidiaries in such
Restricted Subsidiary are reasonably related to the business of such Restricted
Subsidiary. Nothing contained in this Section 4.05 shall prevent the Company or
any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale
or other disposition of property or assets of the Company or any of its
Restricted Subsidiaries that secure Indebtedness of the Company or any of its
Restricted Subsidiaries.
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of
-------------------------------------------------------
Restricted Subsidiaries. The Company will not sell, and will not permit any
-----------------------
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of
Capital Stock of a Restricted Subsidiary (including options, warrants or other
rights to purchase shares of such Capital Stock) except (i) to the Company or a
Wholly Owned Restricted Subsidiary; (ii) issuances of director's qualifying
shares or sales to foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable law; (iii) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect to such issuance or sale would have
been permitted to be made under Section 4.04 if made on the date of such
issuance or sale; or (iv) issuances or sales of Common Stock of Restricted
Subsidiaries the Net Cash Proceeds of which (if any) are applied as provided in
clause (A) or (B) of Section 4.10.
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
---------------------------------------------------
Subsidiaries. The Company will not permit any Restricted Subsidiary, directly
------------
or indirectly, to Guarantee any Indebtedness of the Company which is pari passu
with or subordinate in right of payment to the Debentures ("Guaranteed
Indebtedness"), unless (i) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture to the Indenture providing for a Guarantee
(a "Subsidiary Guarantee") of payment of the Debentures by such Restricted
Subsidiary 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 its Subsidiary Guarantee until such time as the Debentures have
been paid in full in cash; provided that this paragraph shall not be applicable
to any Guarantee of any Restricted Subsidiary that existed at the time such
Person became a Restricted Subsidiary and was not Incurred in connection with,
or in contemplation of, such
48
Person becoming a Restricted Subsidiary. If the Guaranteed Indebtedness is (A)
pari passu with the Debentures, then the Guarantee of such Guaranteed
Indebtedness shall be pari passu with, or subordinated to, the Subsidiary
Guarantee or (B) subordinated to the Debentures, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to the extent that the Guaranteed Indebtedness is subordinated to the
Debentures.
Notwithstanding any of the foregoing, nothing in this Section 4.07
shall prohibit the occurrence of the Holdings Merger. Immediately upon the
occurrence of the Holdings Merger, all references to the Company in this Section
4.07 shall refer to the Successor Corporation.
Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary shall provide by its terms that it shall be automatically
and unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the Company's
and each Restricted Subsidiary's Capital Stock in, or all or substantially all
the assets of, such Restricted Subsidiary (which sale, exchange or transfer is
not prohibited by the Indenture) or (ii) the release or discharge of the
Guarantee which resulted in the creation of such Subsidiary Guarantee, except a
discharge or release by or as a result of payment under such Guarantee.
SECTION 4.08. Limitation on Transactions with Stockholders and
------------------------------------------------
Affiliates. The Company will not, and will not permit any Restricted Subsidiary
----------
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any holder (or any
Affiliate of such holder) of 5% or more of any class of Capital Stock of the
Company or with any Affiliate of the Company or any Restricted Subsidiary,
except upon fair and reasonable terms no less favorable to the Company or such
Restricted Subsidiary than could be obtained, at the time of such transaction
or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arm's-length
transaction with a Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors, (B) for which the Company or a Restricted Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view; (ii) any transaction
between the Company and any of its Restricted Subsidiaries or between Restricted
Subsidiaries; (iii) the payment of reasonable and customary regular fees to
directors of the Company who are not employees of the Company; (iv) any payments
or other transactions pursuant to any tax-sharing agreement between the Company
and any other Person with which the Company files a consolidated tax return or
with which the Company is part of a consolidated group for tax purposes; (v) any
Restricted Payments not prohibited by Section 4.04; (vi) the payment of fees
49
pursuant to the Management Agreements or pursuant to any similar management
contracts entered into by the Company or any Subsidiary of the Company; and
(vii) the payment of fees to Xxxxxx Xxxxxxx & Co. Incorporated or any successor
thereto ("Xxxxxx Xxxxxxx"), S&H or their respective Affiliates for financial,
advisory, consulting or investment banking services that the Board of Directors
deems to be advisable or appropriate for the Company or any Subsidiary of the
Company to obtain (including, without limitation, the payment to Xxxxxx Xxxxxxx
of any underwriting discounts or commissions or placement agency fees in
connection with the issuance and sale of any securities by the Company or any
Subsidiary of the Company). Notwithstanding the foregoing, any transaction or
series of related transactions covered by the first paragraph of this Section
4.08 and not covered by clauses (ii) through (vii) of this paragraph, (a) the
aggregate amount of which exceeds $5 million in value, must be approved or
determined to be fair in the manner provided for in clause (i)(A) or (B) above
and (b) the aggregate amount of which exceeds $8 million in value, must be
determined to be fair in the manner provided for in clause (i)(B) above.
Notwithstanding any of the foregoing, nothing in this Section 4.08
shall prohibit the occurrence of the Holdings Merger. Immediately upon the
occurrence of the Holdings Merger, all references to the Company in this Section
4.08 shall refer to the Successor Corporation.
SECTION 4.09. Limitation on Liens. The Company will not, and will
-------------------
not permit any Restricted Subsidiary to, create, incur, assume or suffer to
exist any Lien on any of its assets or properties of any character, or any
shares of Capital Stock or Indebtedness of any Restricted Subsidiary, without
making effective provision for all of the Debentures and all other amounts due
under the Indenture to be directly secured equally and ratably with (or, if the
obligation or liability to be secured by such Lien is subordinated in right of
payment to the Debentures, prior to) the obligation or liability secured by such
Lien.
The foregoing limitation does not apply to (i) Liens existing on the
Closing Date, including Liens existing on the Closing Date securing obligations
under the Credit Agreement; (ii) Liens granted after the Closing Date on any
assets or Capital Stock of the Company or its Restricted Subsidiaries created in
favor of the Holders; (iii) Liens with respect to the assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a Restricted
Subsidiary to secure Indebtedness owing to the Company or such other Restricted
Subsidiary; (iv) Liens securing Indebtedness which is Incurred to refinance
secured Indebtedness which is permitted to be Incurred under clause (iii) of the
second paragraph of Section 4.03; provided that such Liens do not extend to or
cover any property or assets of the Company or any Restricted Subsidiary other
than the property or assets securing the Indebtedness being refinanced; (v)
Liens on any property or assets of a Restricted Subsidiary securing Indebtedness
of such Restricted Subsidiary permitted under Section 4.03; (vi) Liens securing
Senior Indebtedness (including Interest Rate Agreements and Currency
Agreements); or (vii) Permitted Liens.
50
SECTION 4.10. Limitation on Asset Sales. The Company will not, and
-------------------------
will not permit any Restricted Subsidiary to, consummate any Asset Sale, unless
(i) the consideration received by the Company or such Restricted Subsidiary is
at least equal to the fair market value of the assets sold or disposed of and
(ii) at least 75% of the consideration received consists of cash or Temporary
Cash Investments. In the event and to the extent that the Net Cash Proceeds
received by the Company or any of its Restricted Subsidiaries from one or more
Asset Sales occurring on or after the Closing Date in any period of 12
consecutive months exceed 15% of Adjusted Consolidated Net Tangible Assets
(determined as of the date closest to the commencement of such 12-month period
for which a consolidated balance sheet of the Company and its Subsidiaries has
been filed with the Commission pursuant to Section 4.17), then the Company shall
or shall cause the relevant Restricted Subsidiary to (i) within twelve months
after the date Net Cash Proceeds so received exceed 15% of Adjusted Consolidated
Net Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds
to permanently repay Senior Indebtedness of the Company or any Indebtedness of
any Restricted Subsidiary, in each case owing to a Person other than the Company
or any of its Restricted Subsidiaries or (B) invest an equal amount, or the
amount not so applied pursuant to clause (A) (or enter into a definitive
agreement committing to so invest within 12 months after the date of such
agreement), in property or assets (other than current assets) of a nature or
type or that are used in a business (or in a company having property and assets
of a nature or type, or engaged in a business) similar or related to the nature
or type of the property and assets of, or the business of, the Company and its
Restricted Subsidiaries existing on the date of such investment and (ii) apply
(no later than the end of the 12-month period referred to in clause (i)) such
excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as
provided in the following paragraph of this Section 4.10. The amount of such
excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 12-month period as set forth in clause (i) of the preceding
sentence and not applied as so required by the end of such period shall
constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 4.10 totals at least $10 million, the Company must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Debentures equal to the Excess Proceeds on such date, at a purchase price equal
to 100% of the principal amount of the Debentures, plus, in each case, accrued
interest (if any) to the Payment Date; provided, however, that no Excess
Proceeds Offer shall be required to be commenced with respect to the Debentures
until the Business Day following the dates that payments are made pursuant to
similar offers that are made to holders of Senior Indebtedness, and need not be
commenced if the Excess Proceeds remaining after application to the Senior
Indebtedness purchased in the offers made to the holders of the Senior
Indebtedness are less than $10 million; provided further, however, that no
Debentures may be purchased under this Section 4.10 unless the Company shall
have purchased all Senior Indebtedness tendered pursuant to the offers
applicable thereto.
51
Notwithstanding the foregoing, nothing in this Section 4.10 shall
prohibit the occurrence of the Holdings Merger. Immediately upon the occurrence
of the Holdings Merger, all references to the Company in this Section 4.10 shall
refer to the Successor Corporation.
SECTION 4.11. Repurchase of Debentures upon a Change of Control. The
-------------------------------------------------
Company must commence, within 30 days after the occurrence of a Change of
Control, and consummate an Offer to Purchase for all Debentures then
outstanding, at a purchase price equal to 101% of the principal amount thereof,
plus accrued interest (if any) to the Payment Date. Prior to the mailing of the
notice to the Holders provided for above, but in any event within 30 days
following any Change of Control, the Company covenants to (i) repay in full all
Indebtedness under the Credit Agreement and all other Senior Indebtedness
required to be redeemed or repurchased pursuant to the terms thereof, or to
offer to repay in full all Indebtedness under the Credit Agreement and all such
other Senior Indebtedness and to repay the indebtedness of each holder of Senior
Indebtedness who has accepted such offer or (ii) obtain the requisite consents
under the Credit Agreement and such other Senior Indebtedness to permit the
repurchase of Debentures 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 the Debentures pursuant to this Section 4.11.
SECTION 4.12. Existence. Subject to Articles Four and Five of this
---------
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each such Restricted Subsidiary and
the rights (whether pursuant to charter, partnership certificate, agreement,
statute or otherwise), material licenses and franchises of the Company and each
such Restricted Subsidiary; provided that the Company shall not be required to
preserve any such right, license or franchise, or the existence of any
Restricted Subsidiary, if the maintenance or preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole. Notwithstanding the foregoing, nothing in this
Section 4.12 shall prohibit (i) the occurrence of the Holdings Merger or (ii)
any Subsidiary of the Company or Holdings from consolidating with, merging into,
or selling, conveying, transferring, leasing or otherwise disposing of all or
part of its property and assets to the Company or Holdings or any Restricted
Subsidiary of the Company or Holdings.
SECTION 4.13. Payment of Taxes and Other Claims. The Company will
---------------------------------
pay or discharge and shall cause each of its Subsidiaries to pay or discharge,
or cause to be paid or discharged, before the same shall become delinquent (i)
all material taxes, assessments and governmental charges levied or imposed upon
(a) the Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any such
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
that, if unpaid, might by law become a lien upon the property of the Company or
any such Subsidiary; provided that the Company shall not be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability
52
or validity of which is being contested in good faith by appropriate proceedings
and for which adequate reserves have been established.
SECTION 4.14. Maintenance of Properties and Insurance. The Company
---------------------------------------
will cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries, to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section 4.14 shall prevent the Company or any such
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company, desirable in the conduct of the business of the
Company or such Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or such Restricted Subsidiary, as the case may be,
is then conducting business.
SECTION 4.15. Notice of Defaults. In the event that the Company
------------------
becomes aware of any Default or Event of Default the Company, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 4.16. Compliance Certificates. (a) The Company shall
-----------------------
deliver to the Trustee, within 45 days after the end of each fiscal quarter (120
days after the end of the last fiscal quarter of each year), an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that occurred during such fiscal quarter. In the case of the Officers'
Certificate delivered within 120 days of the end of the Company's fiscal year,
such certificate shall contain a certification from the principal executive
officer, principal financial officer or principal accounting officer that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under this Indenture and that the Company has complied with all conditions and
covenants under this Indenture. For purposes of this Section 4.16, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If they do know of such a
Default or Event of Default, the certificate shall describe any such Default or
Event of Default and its status. The first certificate to be delivered pursuant
to this Section 4.16(a) shall be for the first fiscal quarter beginning after
the execution of this Indenture.
53
(b) The Company shall deliver to the Trustee, within 120 days after
the end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Debentures as they relate to accounting matters, (ii) that they have read the
most recent Officers' Certificate delivered to the Trustee pursuant to paragraph
(a) of this Section 4.16 and (iii) whether, in connection with their audit
examination, anything came to their attention that caused them to believe that
the Company was not in compliance with any of the terms, covenants, provisions
or conditions of Article Four and Section 5.01 of this Indenture as they pertain
to accounting matters and, if any Default or Event of Default has come to their
attention, specifying the nature and period of existence thereof; provided that
such independent certified public accountants shall not be liable in respect of
such statement by reason of any failure to obtain knowledge of any such Default
or Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with generally accepted auditing standards
in effect at the date of such examination.
SECTION 4.17. Commission Reports and Reports to Holders. Whether or
-----------------------------------------
not the Company is then required to file reports with the Commission, the
Company shall file with the Commission all such reports and other information as
it would be required to file with the Commission by Sections 13(a) or 15(d)
under the Securities Exchange Act of 1934 if it were subject thereto. The
Company shall supply the Trustee and each Holder or shall supply to the Trustee
for forwarding to each such Holder, without cost to such Holder, copies of such
reports and other information.
SECTION 4.18. Waiver of Stay, Extension or Usury Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Debentures as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
54
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company will not
---------------------------
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into the
Company unless:
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or that acquired or leased such property and assets of
the Company shall be a corporation organized and validly existing under the
laws of the United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the obligations of the Company on all of the Debentures
and under this Indenture;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Company or any Person becoming the successor obligor of
the Debentures shall have a Consolidated Net Worth (without giving effect
to any non-cash charges resulting from such consolidation, merger, sale,
conveyance, transfer, lease or other disposition) equal to or greater than
the Consolidated Net Worth of the Company immediately prior to such
transaction;
(iv) immediately after giving effect to such transaction on a pro
forma basis the Interest Coverage Ratio of the Company (or any Person
becoming the successor obligor on the Debentures), is at least 1:1;
provided that if the pro forma Interest Coverage Ratio of the Company
before giving effect to such transaction is within the range set forth in
column (A) below, then the Interest Coverage Ratio of the Company (or any
Person becoming the successor obligor on the Debentures) shall be at least
equal to the lesser of (1) the ratio determined by multiplying the
percentage set forth in column (B) below by the Interest Coverage Ratio of
the Company prior to such transaction and (2) the ratio set forth in column
(C) below:
(A) (B) (C)
--- --- ---
1.11:1 to 1.99:1 90% 1.5:1
2.00:1 to 2.99:1 80% 2.1:1
55
3.00:1 to 3.99:1 70% 2.4:1
4.00:1 or more 60% 2.5:1
and provided further that, if the pro forma Interest Coverage Ratio of the
Company (or any Person becoming the successor obligor on the Debentures) is
3:1 or more, the calculation in the preceding proviso shall be inapplicable
and such transaction shall be deemed to have complied with the requirements
of this clause (iv); provided that this clause (iv) shall not apply to a
consolidation or merger with or into a Restricted Subsidiary; provided
that, in connection with any such merger or consolidation, no consideration
(other than Capital Stock (other than Disqualified Stock) in the surviving
Person, the Company) shall be issued or distributed to the stockholders of
the Company; and
(v) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with
clauses (iii) and (iv)) and Opinion of Counsel, in each case stating that
such consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent provided for
herein relating to such transaction have been complied with;
provided, however, that (A) clauses (ii), (iii) and (iv) above do not apply to
the Holdings Merger and (B) clauses (iii) and (iv) above do not apply if, in the
good faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose of
such transaction is to change the state of incorporation of the Company; and
provided further that any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations.
SECTION 5.02. Successor Substituted. Upon any consolidation or
---------------------
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the
Debentures in the case of a lease of all or substantially all of its property
and assets.
56
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" shall
----------------- ----------------
occur with respect to the Debentures if:
(a) the Company defaults in the payment of the principal of (or
premium, if any, on) any Debenture when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by Article Ten;
(b) the Company defaults in the payment of interest on any Debenture
when the same becomes due and payable, and such default continues for a
period of 30 days, whether or not such payment is prohibited by Article
Ten;
(c) the Company defaults in the performance of, or breaches the
provisions of, Article Five or fails to make or consummate an Offer to
Purchase in accordance with Section 4.10 or 4.11, whether or not such Offer
to Purchase is prohibited by Article Ten;
(d) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or under the
Debentures (other than a default specified in clause (a), (b) or (c) above)
and such default or breach continues for a period of 30 consecutive days
after written notice to the Company by the Trustee or the Holders of 25% or
more in aggregate principal amount of the Debentures;
(e) there occurs with respect to any issue or issues of Indebtedness
of the Company or any Significant Subsidiary having an outstanding
principal amount of $10 million or more in the aggregate for all such
issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full or
such acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment shall
not have been made, waived or extended within 30 days of such payment
default;
(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 60 consecutive days
following entry of the final judgment or order that causes the aggregate
amount for all such final judgments or orders outstanding and not paid or
discharged against all such Persons to exceed $10 million during which a
stay of enforcement of such final judgment or order,
57
by reason of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs
of the Company or any Significant Subsidiary and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(h) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any
general assignment for the benefit of creditors.
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in clause (g) or (h) of Section 6.01 that occurs with
respect to the Company) occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Debentures then outstanding, by written notice (the "Acceleration Notice") to
the Company (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and accrued interest on the Debentures to be immediately due
and payable. Upon a declaration of acceleration, such principal of, premium, if
any, and accrued interest shall be immediately due and payable; provided that
for so long as the Credit Agreement is in effect, such declaration shall not
become effective until the earlier of (i) five Business Days after receipt of
the Acceleration Notice by the Bank Agent and the Company and (ii) acceleration
of the Indebtedness under the Credit Agreement; provided further that such
acceleration shall automatically be rescinded and annulled without any further
action required on the part of the Holders in the event that any and all Events
of Default specified in the Acceleration Notice shall have been cured, waived or
otherwise remedied in accordance with Section 6.04 prior to the expiration of
the period referred to in the preceding clauses (i) and (ii). In the event of a
declaration of acceleration because an Event of Default set forth in clause (e)
of Section 6.01 has occurred and is continuing, such declaration of acceleration
shall be automatically rescinded and annulled if the event of default triggering
such Event of Default pursuant to clause (e) shall be remedied or cured by the
Company and/or the relevant Significant Subsidiary or waived by the holders of
the relevant Indebtedness within 60 days after the declaration of acceleration
with respect thereto. If an Event of Default specified in clause (g) or (h) of
Section 6.01 occurs with
58
respect to the Company, the principal of, premium, if any, and accrued interest
on the Debentures then outstanding shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration, but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Debentures by written notice to the Company and to the Trustee, may
waive all past Defaults and rescind and annul such declaration of acceleration
and its consequences if (i) all existing Events of Default, other than the non-
payment of the principal of, premium, if any, and accrued interest on the
Debentures that have become due solely by such declaration of acceleration, have
been cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Debentures or to enforce the performance of any provision of the
Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02,
-----------------------
6.07 and 9.02, the Holders of at least a majority in principal amount of the
outstanding Debentures, by notice to the Trustee, may waive an existing Default
or Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any Debenture as specified in
clause (a) or (b) of Section 6.01 or in respect of a covenant or provision of
this Indenture which cannot be modified or amended without the consent of the
holder of each outstanding Debenture affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a
-------------------
majority in aggregate principal amount of the outstanding Debentures 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 the Trustee;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability,
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Debentures not joining in the giving of such direction; and
provided further, that the Trustee may take any other action it deems proper
that is not inconsistent with any such direction received from Holders of
Debentures pursuant to this Section 6.05.
SECTION 6.06. Limitation on Suits. A Holder may not institute any
-------------------
proceeding,
59
judicial or otherwise, with respect to this Indenture or the Debentures, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) the Holder has previously given to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Debentures shall have made a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any costs, liabilities or expenses to
be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to comply with such request; and
(v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Debentures have not given the Trustee a
direction that is inconsistent with such written request.
For purposes of Section 6.05 of this Indenture and this Section 6.06,
the Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Debentures have concurred in any request or direction of the Trustee to pursue
any remedy available to the Trustee or the Holders with respect to this
Indenture or the Debentures or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
The limitations set forth in this Section 6.06 shall not apply to the
right of any Holder of a Debenture to receive payment of the principal of,
premium, if any, or interest on, such Debenture or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the
Debentures, which right shall not be impaired or affected without the consent of
the Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
------------------------------------
any other provision of this Indenture, the right of any Holder of a Debenture to
receive payment of principal of, premium, if any, or interest on such Holder's
Debenture on or after the respective due dates expressed on such Debenture, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
--------------------------
payment of principal, premium or interest specified in clause (a) or (b) of
Section 6.01 occurs and is
60
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor of the Debentures for
the whole amount of principal, premium, if any, and accrued interest remaining
unpaid, together with interest on overdue principal, premium, if any, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate specified in the Debentures,
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Debentures), its creditors or its
property and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Debentures or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official 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 agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower 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 Debentures or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
----------
to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to the holders of Senior Indebtedness, as and to the extent
required by Article Ten;
Third: to Holders for amounts then due and unpaid for principal of,
premium, if any, and interest on the Debentures in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Debentures for principal, premium, if any, and interest,
respectively; and
Fourth: to the Company or any other obligors of the Debentures, as
their interests may appear, or as a court of competent jurisdiction may
direct.
61
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 of this Indenture, or a suit by Holders of more than 10% in principal
amount of the outstanding Debentures.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Company, Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Debentures in Section 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
62
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the
-------
Trustee shall be as provided by the TIA and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections
-------------------------
315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter
stated in the document;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 11.04. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care;
(iv) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(v) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Debentures 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; provided
that the Trustee's conduct does not constitute negligence or bad faith;
63
(vi) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
negligence or bad faith on its part, rely upon an Officers' Certificate;
and
(vii) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney upon reasonable prior notice to the
Company.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
----------------------------
individual or any other capacity, may become the owner or pledgee of Debentures
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
--------------------
representation as to the validity or adequacy of this Indenture or the
Debentures, (ii) shall not be accountable for the Company's use or application
of the proceeds from the Debentures and (iii) shall not be responsible for any
statement in the Debentures other than its certificate of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of
-----------------
Default occurs and is continuing and if such Default or Event of Default is
known to the Trustee, the Trustee shall mail to each Holder in the manner and to
the extent provided in TIA 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 Debenture, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
-----------------------------
each May 15, beginning with May 15, 1998, the Trustee shall mail to each Holder
as provided in TIA Section 313(c) a brief report dated as of such May 15, if
required by TIA Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
--------------------------
the Trustee such compensation as shall be agreed upon in writing for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses
64
and advances incurred or made by the Trustee. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part in connection with the acceptance or administration of
this Indenture and its duties under this Indenture and the Debentures, including
the costs and expenses of defending itself against any claim or liability and of
complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under this
Indenture and the Debentures. The Trustee shall notify the Company promptly of
any claim asserted against the Trustee for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay reasonable fees
and expenses of such counsel. The Company need not pay for any settlements made
without its consent; provided that such consent shall not be unreasonably
--------
withheld. The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 7.08. Replacement of Trustee. A resignation or removal of
----------------------
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Debentures may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the consent of the Company. The Company may remove the
Trustee if: (i) the Trustee is no longer eligible under Section 7.10; (ii) the
Trustee is adjudged a bankrupt or an insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Debentures may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Debentures may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
65
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.
If the Trustee is no longer eligible under Section 7.10, any Holder
who satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
The Company shall give notice of any resignation and any removal of
the Trustee and each appointment of a successor Trustee to all Holders. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligation under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
--------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility. This Indenture shall always have a
-----------
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $25 million as set forth
in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable
-------------------
for interest on any money received by it except as the Trustee may agree with
the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article Eight of this Indenture.
SECTION 7.12. Withholding Taxes. The Trustee, as agent for the
-----------------
Company, shall exclude and withhold from each payment of principal and interest
and other amounts due hereunder or under the Debentures any and all withholding
taxes applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Debentures, to withhold such amounts and timely pay
the same to the appropriate authority in the name of and on behalf of the
holders of the Debentures, that it will file any necessary withholding tax
returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each Holder of a
66
Debenture appropriate documentation showing the payment thereof, together with
such additional documentary evidence as such Holders may reasonably request from
time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as
------------------------------------
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Debentures and this Indenture if:
(i) all Debentures previously authenticated and delivered (other than
destroyed, lost or stolen Debentures that have been replaced or Debentures
that are paid pursuant to Section 4.01 or Debentures for whose payment
money or securities have theretofore been held in trust and thereafter
repaid to the Company, as provided in Section 8.05) have been delivered to
the Trustee for cancellation and the Company has paid all sums payable by
it hereunder; or
(ii) (A) the Debentures mature within one year or all of them are to
be called for redemption within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption, (B) the Company
irrevocably deposits in trust with the Trustee during such one-year period,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
Holders for that purpose, money or U.S. Government Obligations sufficient
(in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of any interest
thereon, to pay principal, premium, if, any, and interest on the Debentures
to maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, (C) no Default or Event of Default with respect to
the Debentures shall have occurred and be continuing on the date of such
deposit, (D) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound and
(E) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (ii),
the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05, 8.06 and Article Ten (with
respect to payments in respect of Senior Subordinated Obligations other than
with the assets held in trust as described in the foregoing clause (ii)) shall
survive until the Debentures are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After any
such irrevocable deposit,
67
the Trustee upon request shall acknowledge in writing the discharge of the
Company's obligations under the Debentures and this Indenture except for those
surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company
-------------------------------------
will be deemed to have paid and will be discharged from any and all obligations
in respect of the Debentures on the 123rd day after the date of the deposit
referred to in clause (A) of this Section 8.02, and the provisions of this
Indenture will no longer be in effect with respect to the Debentures, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same, except as to (i) rights of registration of transfer and
exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or
stolen Debentures, (iii) rights of Holders to receive payments of principal
thereof and interest thereon, (iv) the Company's obligations under Section 4.02,
(v) the rights, obligations and immunities of the Trustee hereunder and (vi) the
rights of the Holders as beneficiaries of this Indenture with respect to the
property so deposited with the Trustee payable to all or any of them; provided
that the following conditions shall have been satisfied:
(A) with reference to this Section 8.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.10 of this
Indenture) and conveyed all right, title and interest for the benefit of
the Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust, specifically
pledged to the Trustee for the benefit of the Holders as security for
payment of the principal of, premium, if any, and interest, if any, on the
Debentures, and dedicated solely to, the benefit of the Holders, in and to
(1) money in an amount, (2) U.S. Government Obligations that, through the
payment of interest, premium, if any, and principal in respect thereof in
accordance with their terms, will provide, not later than one day before
the due date of any payment referred to in this clause (A), money in an
amount or (3) a combination thereof in an amount sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and accrued interest on the outstanding Debentures at the
Stated Maturity of such principal or interest; provided that the Trustee
shall have been irrevocably instructed to apply such money or the proceeds
of such U.S. Government Obligations to the payment of such principal,
premium, if any, and interest with respect to the Debentures;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound and
is permitted by Article Ten;
(C) immediately after giving effect to such deposit on a pro forma
basis giving
68
effect to such deposit and defeasance, no Default or Event of Default or
event that after the giving of notice or lapse of time or both would become
an Event of Default, shall have occurred and be continuing on the date of
such deposit or during the period ending on the 123rd day after such date
of deposit, and such deposit shall not result in a breach or violation of,
or constitute a default under, any other material agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(D) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of its
option under this Section 8.02 and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
accompanied by a ruling to that effect published by the Internal Revenue
Service, unless there has been a change in the applicable federal income
tax law since the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (2) an Opinion of
Counsel to the effect that (x) the creation of the defeasance trust does
not violate the Investment Company Act of 1940 and (y) after the passage of
123 days following the deposit (except, with respect to any trust funds for
the account of any Holder who may be deemed to be an "insider" for purposes
of the United States Bankruptcy Code, after one year following the
deposit), the trust funds will not be subject to the effect of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor
and Creditor Law in a case commenced by or against the Company under either
such statute, and either (I) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (II) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Company, (a) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not paid
to the Holders, the Trustee will hold, for the benefit of the Holders, a
valid and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute and (b) the
Holders will be entitled to receive adequate protection of their interests
in such trust funds if such trust funds are used in such case or
proceeding;
(E) if the Debentures are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit defeasance and discharge will not
cause the Debentures to be delisted; and
(F) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein
69
relating to the defeasance contemplated by this Section 8.02 have been
complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (D)(2)(y) of this Section 8.02, none of the
Company's obligations under this Indenture shall be discharged. Subsequent to
the end of such 123-day (or one year) period with respect to this Section 8.02,
the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 and Article Ten (with respect
to payments in respect of Senior Subordinated Obligations other than with the
assets held in trust as described in this Section 8.02) shall survive until the
Debentures are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive. If and when a ruling
from the Internal Revenue Service or an Opinion of Counsel referred to in clause
(D)(1) of this Section 8.02 is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Company's obligations under
Section 4.01, then the Company's obligations under such Section 4.01 shall cease
upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Debentures and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Company may
---------------------------------
omit to comply with any term, provision or condition set forth in clauses (iii)
and (iv) of Section 5.01 and Sections 4.03 through 4.17, and clauses (c) and (d)
of Section 6.01 with respect to clauses (iii) and (iv) of Section 5.01 and
Sections 4.03 through 4.17, and clauses (e) and (f) of Section 6.01 shall be
deemed not to be Events of Default, and Article Ten shall not apply to the money
and/or U.S. Government Obligations held by the trust referred to in clause (i)
below, in each case with respect to the outstanding Debentures if:
(i) with reference to this Section 8.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.10) and conveyed
all right, title and interest to the Trustee for the benefit of the
Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust, specifically
pledged to the Trustee for the benefit of the Holders as security for
payment of the principal of, premium, if any, and interest, if any, on the
Debentures, and dedicated solely to, the benefit of the Holders, in and to
(A) money in an amount, (B) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance with
their terms, will provide, not later than one day before the due date of
any payment referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and
70
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and interest on the outstanding Debentures on the Stated
Maturity of such principal or interest; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of
such U.S. Government Obligations to the payment of such principal, premium,
if any, and interest with respect to the Debentures;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound and is
permitted by Article Ten;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (A) the creation of the defeasance trust does not violate
the Investment Company Act of 1940, (B) the Holders have a valid first-
priority security interest in the trust funds, (C) the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred and (D) after the passage of 123 days following the deposit
(except, with respect to any trust funds for the account of any Holder who
may be deemed to be an "insider" for purposes of the United States
Bankruptcy Code, after one year following the deposit), the trust funds
will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a
case commenced by or against the Company under either such statute, and
either (1) the trust funds will no longer remain the property of the
Company (and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally) or (2) if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the Company,
(x) assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders, a valid and perfected
security interest in such trust funds that is not avoidable in bankruptcy
or otherwise (except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute), (y) the Holders will be
entitled to receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or proceeding and (z) no
property, rights in property or other interests granted to the Trustee or
the Holders in exchange for, or with respect to, such trust funds will be
subject to any prior rights of holders of other Indebtedness of the Company
or any of its Subsidiaries;
(v) if the Debentures are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that
71
such deposit defeasance and discharge will not cause the Debentures to be
delisted; and
(vi) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06,
--------------------------
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Debentures and this Indenture to
the payment of principal of, premium, if any, and interest on the Debentures;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
--------------------
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years; provided that
the Trustee or such Paying Agent before being required to make any payment may
cause to be published at the expense of the Company once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money at such Holder's address (as set forth in the Security Register)
notice that such money remains unclaimed and that after a date specified therein
(which shall be at least 30 days from the date of such publication or mailing)
any unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, Holders entitled to such money must look
to the Company for payment as general creditors unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Debentures shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02
or 8.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the
Company has made any payment of principal of, premium, if any, or interest on
any Debentures because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Debentures to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when
--------------------------
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement this Indenture or the Debentures without notice to or the consent
of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not, in the good faith
opinion of the Board of Directors as evidenced by a Board Resolution,
adversely affect the interests of the Holders in any material respect;
(2) to comply with Article Five, including, without limitation, to
provide for Holdings' assumption of the liabilities of the Company
represented by the Debentures following the consummation of the Holdings
Merger;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(5) to make any change that does not materially and adversely affect
the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
-----------------------
6.07 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution), and the Trustee may
amend this Indenture and the Debentures with the written consent of the Holders
of not less than a majority in aggregate principal amount of the outstanding
Debentures, and the Holders of not less than a majority in aggregate principal
amount of the outstanding Debentures by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Debentures.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any installment
of interest on, any Debenture, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption
thereof, or adversely affect any right of repayment at the option of any
Holder of any Debenture, or change any place of payment where, or the
currency in which, any Debenture or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
73
(ii) reduce the percentage of outstanding Debentures the consent of
whose Holders is required to modify or amend the Indenture;
(iii) reduce the percentage or aggregate principal amount of
outstanding Debentures the consent of whose Holders is required for any
such supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences
provided for in this Indenture;
(iv) waive a Default in the payment of principal of, premium, if any,
or interest on, any Debenture;
(v) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Debenture affected thereby; or
(vi) modify any of the provisions of Article Ten in a manner adverse
to the Holders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment
--------------------------------
or waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Debenture or portion of a
Debenture that evidences the same debt as the Debenture of the consenting
Holder, even if notation of the consent is not made on any Debenture. However,
any such Holder or subsequent Holder may revoke the consent as to its Debenture
or portion of its Debenture. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective on receipt by the Trustee of written consents from the
Holders of the requisite percentage in principal amount of the outstanding
Debentures.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated
74
proxies) and only those persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in any of clauses (i)
through (v) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (i) through (v) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Debenture that evidences the same indebtedness as the Debenture of the
consenting Holder.
SECTION 9.04. Notation on or Exchange of Debentures. If an
-------------------------------------
amendment, supplement or waiver changes the terms of a Debenture, the Trustee
may require the Holder to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Debenture about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Debenture
thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Debenture shall issue and the
Trustee shall authenticate a new Debenture that reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
-------------------------------
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the rights
of the Trustee. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every
-----------------------------------
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
ARTICLE TEN
SUBORDINATION OF DEBENTURES
SECTION 10.01. Debentures Subordinated to Senior Indebtedness. The
----------------------------------------------
Company and the Trustee each covenants and agrees, and each Holder, by its
acceptance of a Debenture, likewise covenants and agrees that all Debentures
shall be issued subject to the provisions of this Article Ten; and each Person
holding any Debenture, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees that Senior Subordinated Obligations
shall, to the extent and in the manner set forth in this Article Ten, be
subordinated in right of payment to the prior payment in full, in cash or cash
equivalents, of all
75
amounts payable under Senior Indebtedness, including, without limitation, the
Company's obligations under the Credit Agreement (including any interest
accruing subsequent to an event specified in Sections 6.01(g) and 6.01(h) of
this Indenture, whether or not such interest is an allowed claim enforceable
against the debtor under the United States Bankruptcy Code).
Upon the occurrence of the Holdings Merger, which will occur no later
than June 30, 1997, the Debentures will become obligations of Holdings and will
be subordinated in right of payment to all Senior Indebtedness of Holdings. All
existing and future liabilities (including trade payables) of Holdings'
subsidiaries will be effectively senior to the Debentures.
SECTION 10.02. No Payment on Debentures in Certain Circumstances.
-------------------------------------------------
(a) No direct or indirect payment by or on behalf of the Company of Senior
Subordinated Obligations, whether pursuant to the terms of the Debentures or
upon acceleration or otherwise, shall be made if, at the time of such payment,
there exists a default in the payment of all or any portion of the obligations
on any Senior Indebtedness, and such default shall not have been cured or waived
or the benefits of this sentence waived by or on behalf of the holders of such
Senior Indebtedness.
(b) During the continuance of any other event of default with respect
to (i) the Credit Agreement pursuant to which the maturity thereof may be
accelerated and (A) upon receipt by the Trustee of written notice from the Bank
Agent or (B) if such event of default under the Credit Agreement results from
the acceleration of the Debentures, from and after the date of such
acceleration, no payment of Senior Subordinated Obligations may be made by or on
behalf of the Company upon or in respect of the Debentures for a period (a
"Payment Blockage Period") commencing on the earlier of the date of receipt of
------------------------
such notice or the date of such acceleration and ending 159 days thereafter
(unless such Payment Blockage Period shall be terminated by written notice to
the Trustee from the Bank Agent or such event of default has been cured or
waived or by repayment in full in cash or cash equivalents of such Senior
Indebtedness) or (ii) any other Designated Senior Indebtedness pursuant to which
the maturity thereof may be accelerated, upon receipt by the Trustee of written
notice from the trustee or other representative for the holders of such other
Designated Senior Indebtedness (or the holders of at least a majority in
principal amount of such other Designated Senior Indebtedness then outstanding),
no payment of Senior Subordinated Obligations may be made by or on behalf of the
Company upon or in respect of the Debentures for a Payment Blockage Period
commencing on the date of receipt of such notice and ending 119 days thereafter
(unless, in each case, such Payment Blockage Period shall be terminated by
written notice to the Trustee from such trustee of, or other representatives
for, such holders or by repayment in full in cash or cash equivalents of such
Designated Senior Indebtedness or such event of default has been cured or
waived). Not more than one Payment Blockage Period may be commenced with
respect to the Debentures during any period of 360 consecutive days; provided
that, subject to the limitation contained in the next sentence, the commencement
of a Payment Blockage Period by the representatives for, or the holders of,
Designated Senior Indebtedness other than under the Credit Agreement or under
clause (i)(B) of this paragraph shall not bar the commencement of another
Payment Blockage Period by the Bank Agent within such period of 360 consecutive
days.
76
Notwithstanding anything in this Indenture to the contrary, there must be 180
consecutive days in any 360-day period in which no Payment Blockage Period is in
effect. For all purposes of this Section 10.02(b), no event of default (other
than an event of default pursuant to the financial maintenance covenants under
the Credit Agreement) that existed or was continuing (it being acknowledged that
any subsequent action that would give rise to an event of default pursuant to
any provision under which an event of default previously existed or was
continuing shall constitute a new event of default for this purpose) on the date
of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or shall be made, the basis for the commencement of a second Payment Blockage
Period by the representative for, or the holders of, such Designated Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a) or 10.02(b) of this Indenture, the Trustee shall promptly
notify the holders of Senior Indebtedness of such prohibited payment and such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full, in cash or cash equivalents after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Indebtedness.
SECTION 10.03. Payment over Proceeds upon Dissolution, Etc. (a)
-------------------------------------------
Upon any payment or distribution of assets or securities of the Company of any
kind or character, whether in cash, property or securities, in connection with
any dissolution or winding up or total or partial liquidation or reorganization
of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings or other marshalling of assets for the benefit
of creditors, all amounts due or to become due upon all Senior Indebtedness
(including any interest accruing subsequent to an event specified in Sections
6.01(g) and 6.01(h) of this Indenture, whether or not such interest is an
allowed claim enforceable against the debtor under the United States Bankruptcy
Code) shall first be paid in full, in cash or cash equivalents, before the
Holders or the Trustee on their behalf shall be entitled to receive any payment
by or on behalf of the Company on account of Senior Subordinated Obligations, or
any payment to acquire any of the Debentures for cash, property or securities,
or any distribution with respect to the Debentures of any cash, property or
securities. Before any payment may be made by, or on behalf of, the Company on
any Senior Subordinated Obligations in connection with any such dissolution,
winding up, liquidation or reorganization, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, to which the Holders or the Trustee on their behalf would be
entitled, but for the provisions of this Article Ten, shall be made by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person making such payment or distribution, or by the Holders or
the Trustee if received by them or it, directly to the holders of Senior
Indebtedness
77
(pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their representatives or to any trustee or
trustees under any other indenture pursuant to which any such Senior
Indebtedness may have been issued, as their respective interests appear, to the
extent necessary to pay all such Senior Indebtedness in full, in cash or cash
equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment is recovered by, or
paid over to, such receiver,trustee in bankruptcy, liquidating trustee, agent or
other similar Person, the Senior Indebtedness or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment had not occurred. To the extent the obligation to repay any Senior
Indebtedness is declared to be fraudulent, invalid, or otherwise set aside under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then the obligations so declared fraudulent, invalid or otherwise set aside (and
all other amounts that would come due with respect thereto had such obligation
not been affected) shall be deemed to be reinstated and outstanding as Senior
Indebtedness for all purposes hereof as if such declaration, invalidity or
setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder at a time when
such payment or distribution is prohibited by Section 10.03(a) of this Indenture
and before all obligations in respect of Senior Indebtedness are paid in full,
in cash or cash equivalents, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness (pro rata to such holders on the basis of such
--- ----
respective amount of Senior Indebtedness held by such holders) or their
representatives, or to the trustee or trustees under any indenture pursuant to
which any such Senior Indebtedness may have been issued, as their respective
interests appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full, in
cash or cash equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(d) For purposes of this Section 10.03, the words "cash, property or
securities" shall not be deemed to include, so long as the effect of this clause
is not to cause the Debentures to be treated in any case or proceeding or
similar event described in this Section 10.03 as part of the same class of
claims as the Senior Indebtedness or any class of claims pari passu with, or
senior to, the Senior Indebtedness for any payment or distribution, securities
of the Company or any other corporation provided for by a plan of reorganization
or
78
readjustment that are subordinated, at least to the extent that the Debentures
are subordinated, to the payment of all Senior Indebtedness then outstanding;
provided that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Indebtedness and (2) the
rights of the holders of the Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company with or into, another
corporation or the liquidation or dissolution of the Company following the sale,
conveyance, transfer, lease or other disposition of all or substantially all of
its property and assets to another corporation upon the terms and conditions
provided in Article Five of this Indenture (including in connection with the
Acquisition) shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 10.03 if such other corporation
shall, as a part of such consolidation, merger, sale, conveyance, transfer,
lease or other disposition, comply (to the extent required) with the conditions
stated in Article Five of this Indenture.
SECTION 10.04. Subrogation. (a) Upon the payment in full of all
-----------
Senior Indebtedness in cash or cash equivalents, the Holders shall be subrogated
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company made on such Senior
Indebtedness until the principal of, premium, if any, and interest on the
Debentures shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders or the Trustee on their behalf would
be entitled except for the provisions of this Article Ten, and no payment
pursuant to the provisions of this Article Ten to the holders of Senior
Indebtedness by Holders or the Trustee on their behalf shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders, be deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article Ten are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of the Senior Indebtedness, on the other hand.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Ten shall
have been applied, pursuant to the provisions of this Article Ten, to the
payment of all amounts payable under Senior Indebtedness, then, and in such
case, the Holders shall be entitled to receive from the holders of such Senior
Indebtedness any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount required to make payment in full, in cash
or cash equivalents, of such Senior Indebtedness of such holders.
SECTION 10.05. Obligations of Company Unconditional. (a) Nothing
------------------------------------
contained in this Article Ten or elsewhere in this Indenture or in the
Debentures is intended to or shall impair, as among the Company and the Holders,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders the principal of, premium, if any, and interest on the Debentures as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein
79
prevent the Holders or the Trustee on their behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Ten of the holders of the Senior
Indebtedness.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article Ten will restrict the right of the Trustee or the
Holders to take any action to declare the Debentures to be due and payable prior
to their Stated Maturity pursuant to Section 6.01 of this Indenture or to pursue
any rights or remedies hereunder; provided, however, that all Senior
Indebtedness then due and payable or thereafter declared to be due and payable
shall first be paid in full, in cash or cash equivalents, before the Holders or
the Trustee are entitled to receive any direct or indirect payment from the
Company of Senior Subordinated Obligations.
SECTION 10.06. Notice to Trustee. (a) The Company shall give prompt
-----------------
written notice to the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article Ten. The Trustee shall
not be charged with the knowledge of the existence of any default or event of
default with respect to any Senior Indebtedness or of any other facts that would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing at its Corporate Trust Office to
that effect signed by an Officer of the Company, or by a holder of Senior
Indebtedness or trustee or agent thereof; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided that, if the Trustee shall not have
received the notice provided for in this Section 10.06 at least two Business
Days prior to the date upon which, by the terms of this Indenture, any monies
shall become payable for any purpose (including, without limitation, the payment
of the principal of, premium, if any, or interest on any Debenture), then,
notwithstanding anything herein to the contrary, the Trustee shall have full
power and authority to receive any monies from the Company and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary that may be received by it on or after such prior date
except for an acceleration of the Debentures prior to such application. Nothing
contained in this Section 10.06 shall limit the right of the holders of Senior
Indebtedness to recover payments made on account of the Senior Subordinated
Obligations which were not permitted to be made as contemplated by this Article
Ten. The foregoing shall not apply if the Payment Agent is the Company. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or itself to be a holder of any Senior Indebtedness
(or a trustee on behalf of, or other representative of, such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder.
(b) In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in
80
such payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten and, if such evidence is not furnished to the
Trustee, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 10.07. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent. Upon any payment or distribution of assets or securities
-----------------
referred to in this Article Ten, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, delivered to the Trustee or to the Holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Ten.
SECTION 10.08. Trustee's Relation to Senior Indebtedness. (a) The
-----------------------------------------
Trustee and any Paying Agent shall be entitled to all the rights set forth in
this Article Ten with respect to any Senior Indebtedness that may at any time be
held by it in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall deprive
the Trustee or any Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
Sections 10.02(c) and 10.03(c) of this Indenture) and shall not be liable to any
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Debentures or to the Company or to any other person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article Ten or otherwise.
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
------------------------------------------------------
of the Company or Holders of Senior Indebtedness. No right of any present or
------------------------------------------------
future holders of any Senior Indebtedness to enforce subordination as provided
in this Article Ten will at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with. The provisions of this
Article Ten are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness.
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination
-----------------------------------------------------
of Debentures. Each Holder by its acceptance of any Debentures authorizes and
-------------
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the
81
subordination provided in this Article Ten, and appoints the Trustee its
attorney-in-fact for such purposes, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the property and assets of the Company, the filing of a claim for
the unpaid balance of its Debentures in the form required in those proceedings.
If the Trustee does not file a proper claim or proof in indebtedness in the form
required in such proceeding at least 30 days before the expiration of the time
to file such claim or claims, each holder of Senior Indebtedness is hereby
authorized to file an appropriate claim for and on behalf of the Holders.
SECTION 10.11. Not to Prevent Events of Default. The failure to make
--------------------------------
a payment on account of principal of, premium, if any, or interest on the
Debentures by reason of any provision of this Article Ten will not be construed
as preventing the occurrence of an Event of Default.
SECTION 10.12. Trustee's Compensation Not Prejudiced. Nothing in
-------------------------------------
this Article Ten will apply to amounts due to the Trustee in its capacity as
such pursuant to other sections of this Indenture, including Section 7.07.
SECTION 10.13. No Waiver of Subordination Provisions. Without in any
-------------------------------------
way limiting the generality of Section 10.09, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Holders and
without impairing or releasing the subordination provided in this Article Ten or
the obligations hereunder of the Holders to the holders of Senior Indebtedness,
do any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or secured; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 10.14. Payments May Be Paid Prior to Dissolution. Nothing
-----------------------------------------
contained in this Article Ten or elsewhere in this Indenture shall prevent (i)
the Company except under the conditions described in Section 10.02 or 10.03,
from making payments of principal of, premium, if any, and interest on the
Debentures, or from depositing with the Trustee any money for such payments, or
(ii) the application by the Trustee of any money deposited with it for the
purpose of making such payments of principal of, premium, if any, and interest
on the Debentures to the holders entitled thereto unless, at least two Business
Days prior to the date upon which such payment becomes due and payable, the
Trustee shall have received the written notice provided for in Section 10.02(b)
of this Indenture (or there shall have been an acceleration of the Debentures
prior to such application) or in Section 10.06 of this Indenture. Nothing
contained in this Section 10.14 shall limit the right of the holders of Senior
Indebtedness to recover payments made on account of the Senior Subordinated
Obligations which were not
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permitted to be made as contemplated by this Article Ten. The Company shall
give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Company.
SECTION 10.15. Consent of Holders of Senior Indebtedness Under the
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Credit Agreement. The provisions of this Article Ten (including the definitions
----------------
contained in this Article and references to this Article contained in this
Indenture) shall not be amended in a manner that would adversely affect the
rights of the holders of Senior Indebtedness under the Credit Agreement, and no
such amendment shall become effective unless the holders of Senior Indebtedness
under the Credit Agreement shall have consented (in accordance with the
provisions of the Credit Agreement) to such amendment. The Trustee shall be
entitled to receive and rely on an Officers' Certificate stating that such
consent has been given.
SECTION 10.16. Trust Moneys Not Subordinated. Notwithstanding
-----------------------------
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article Eight by the Trustee
for the payment of principal of, premium, if any, and interest on the Debentures
shall not be subordinated to the prior payment of any Senior Indebtedness
(provided that at the time deposited, such deposit did not violate any then
outstanding Senior Indebtedness), and none of the Holders shall be obligated to
pay over any such amount to any holder of Senior Indebtedness.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. Prior to the
---------------------------
effectiveness of the Registration Statement, this Indenture shall incorporate
and be governed by the provisions of the TIA that are required to be part of and
to govern indentures qualified under the TIA. After the effectiveness of the
Registration Statement, this Indenture shall be subject to the provisions of the
TIA that are required to be a part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 11.02. Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to the Company:
-----------------
Silgan Corporation
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
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if to the Trustee:
-----------------
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services Division
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to him
at his address as it appears on the Security Register by first class mail and
shall be sufficiently given to him if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 11.02, it is duly given, whether or not the
addressee receives it.
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. 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate
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or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar. The
-------------------------------------------
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06. Payment Date Other Than a Business Day. If an
--------------------------------------
Interest Payment Date, Redemption Date, Change of Control Payment Date, Excess
Proceeds Payment Date, Stated Maturity or date of maturity of any Debenture
shall not be a Business Day, then payment of principal of, premium, if any, or
interest on such Debenture, as the case may be, 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 Interest Payment Date, Change of Control Payment Date,
Excess Proceeds Payment Date, or Redemption Date, or at the Stated Maturity or
date of maturity of such Debenture; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Change of Control Payment
Date, Excess Proceeds Payment Date, Redemption Date, Stated Maturity or date of
maturity, as the case may be.
SECTION 11.07. Governing Law. The laws of the State of New York
-------------
shall govern this Indenture and the Debentures. The Trustee, the Company and
the Holders agree to submit to the jurisdiction of the courts of the State of
New York in any action or proceeding arising out of or relating to this
Indenture or the Debentures.
SECTION 11.08. No Adverse Interpretation of Other Agreements. This
---------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
85
SECTION 11.09. No Recourse Against Others. No recourse for the
--------------------------
payment of the principal of, premium, if any, or interest on any of the
Debentures, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, or in any of the Debentures, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future partner, shareholder, other
equityholder, officer, director, employee or controlling person, as such, of the
Company or of any successor Person, either directly or through the Company or
any successor Person, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Debentures.
SECTION 11.10. Successors. All agreements of the Company in this
----------
Indenture and the Debentures shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.11. Duplicate Originals. The parties may sign any number
-------------------
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this Indenture
------------
or in the Debentures shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of
--------------------------------
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
SILGAN CORPORATION
By: /s/ Xxxxxx Xxxxxx, Xx.
--------------------------------
Name: Xxxxxx Xxxxxx, Xx.
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
