Exhibit T3C-1
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REPTRON ELECTRONICS, INC.
SENIOR SECURED NOTES DUE 2009
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INDENTURE
DATED AS OF ________________, 2004
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HSBC BANK USA,
AS TRUSTEE
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NOTES TO TAX EXAMINER: THIS INSTRUMENT AND THE EXIT FINANCING
PROVIDED IN ACCORDANCE THEREWITH IS: (1) DONE PURSUANT TO THE PLAN
OF REORGANIZATION (THE "PLAN") OF REPTRON ELECTRONICS, INC.,
CONFIRMED ON OR ABOUT JANUARY 14, 2004, BY JUDGE XXXX XXXXX OF THE
UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
IN ACCORDANCE WITH SECTION 1129 OF THE BANKRUPTCY CODE; (2)
ESSENTIAL TO CONFIRMATION OF THE PLAN; AND (3) NECESSARY TO
CONSUMMATE AND IMPLEMENT THE CONFIRMED PLAN AND THE DEBTOR REPTRON
ELECTRONICS, INC IS A PARTY TO THIS TRANSACTION. AS SUCH, PURSUANT
TO THE PROVISIONS OF SECTION 1146(C) OF THE BANKRUPTCY CODE, NO
DOCUMENTARY STAMP TAX IS DUE ON THIS INSTRUMENT. FURTHER, IN
ACCORDANCE WITH SECTION 1146(C) OF THE BANKRUPTCY CODE, NO
NON-RECURRING INTANGIBLE TAX IS DUE ON THIS INSTRUMENT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND
SECURITY INTEREST GRANTED TO THE TRUSTEE PURSUANT TO THIS AGREEMENT
AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE TRUSTEE HEREUNDER ARE
SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AND SUBORDINATION
AGREEMENT, DATED AS OF __________, 2004 (AS AMENDED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME, THE "INTERCREDITOR AND
SUBORDINATION AGREEMENT"), AMONG REPTRON ELECTRONICS, INC., CONGRESS
FINANCIAL CORPORATION (FLORIDA), AS AGENT, AND HSBC BANK USA, A NEW
YORK BANKING CORPORATION, AS TRUSTEE. IN THE EVENT OF ANY CONFLICT
BETWEEN THE TERMS OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT
AND THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AND SUBORDINATION
AGREEMENT SHALL GOVERN.
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation by Reference
1.01. Definitions .................................................................... 1
1.02. Other Definitions .............................................................. 20
1.03. Incorporation by Reference of Trust Indenture Act .............................. 20
1.04. Rules of Construction .......................................................... 21
ARTICLE II
The Notes
2.01. Amount of Notes ................................................................ 21
2.02. Form and Dating ................................................................ 21
2.03. Execution and Authentication ................................................... 22
2.04. Registrar and Paying Agent, Depositary ......................................... 22
2.05. Paying Agent to Hold Money in Trust ............................................ 23
2.06. Holder Lists ................................................................... 24
2.07. Transfer and Exchange .......................................................... 24
2.08. Replacement Notes .............................................................. 28
2.09. Outstanding Notes .............................................................. 28
2.10. Temporary Notes ................................................................ 29
2.11. Cancellation ................................................................... 29
2.12. Payment of Interest; Defaulted Interest ........................................ 29
2.13. CUSIP Numbers .................................................................. 30
2.14. Computation of Interest ........................................................ 30
ARTICLE III
Redemption
3.01. Notices to Trustee ............................................................. 30
3.02. Selection of Notes To Be Redeemed .............................................. 30
3.03. Notice of Redemption ........................................................... 30
3.04. Effect of Notice of Redemption ................................................. 31
3.05. Deposit of Redemption Price .................................................... 31
3.06. Notes Redeemed in Part ......................................................... 32
ARTICLE IV
Covenants
4.01. Payment of Notes ............................................................... 32
4.02. Commission Reports ............................................................. 32
4.03. Limitation on Incurrence of Additional Indebtedness ............................ 32
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4.04. Limitation on Restricted Payments .............................................. 35
4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries ....... 38
4.06. Limitation on Sales of Assets and Subsidiary Stock ............................. 39
4.07. Limitation on Transactions with Affiliates ..................................... 42
4.08. Repurchase of Notes at the Option of the Holder Upon a Change of Control ....... 43
4.09. Compliance Certificate ......................................................... 44
4.10. Sale/Leaseback Transactions .................................................... 44
4.11. Additional Note Guarantees and Liens ........................................... 45
4.12. Limitation on Lines of Business ................................................ 46
4.13. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries . 46
4.14. Limitation on Liens ............................................................ 47
4.15. Further Instruments and Acts ................................................... 47
ARTICLE V
Successor Company
5.01. When Company May Merge or Transfer Assets ...................................... 47
ARTICLE VI
Events of Defaults and Remedies
6.01. Events of Default .............................................................. 48
6.02. Acceleration ................................................................... 50
6.03. Other Remedies ................................................................. 51
6.04. Waiver of Past Defaults ........................................................ 51
6.05. Control by Majority ............................................................ 51
6.06. Limitation on Suits ............................................................ 51
6.07. Rights of Holders to Receive Payment ........................................... 52
6.08. Collection Suit by Trustee ..................................................... 52
6.09. Trustee May File Proofs of Claim ............................................... 52
6.10. Priorities ..................................................................... 52
6.11. Undertaking for Costs .......................................................... 53
6.12. Waiver of Stay or Extension Laws ............................................... 53
ARTICLE VII
Trustee
7.01. Duties of Trustee .............................................................. 53
7.02. Rights of Trustee .............................................................. 54
7.03. Individual Rights of Trustee ................................................... 55
7.04. Trustee's Disclaimer ........................................................... 55
7.05. Notice of Defaults ............................................................. 56
7.06. Reports by Trustee to Holders .................................................. 56
7.07. Compensation and Indemnity ..................................................... 56
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7.08. Replacement of Trustee ......................................................... 57
7.09. Successor Trustee by Merger .................................................... 58
7.10. Eligibility; Disqualification .................................................. 58
7.11. Preferential Collection of Claims Against the Company .......................... 58
ARTICLE VIII
Discharge of Indenture; Defeasance
8.01. Discharge of Liability on Notes; Defeasance .................................... 58
8.02. Conditions to Defeasance ....................................................... 59
8.03. Application of Trust Money ..................................................... 60
8.04. Repayment to the Company ....................................................... 61
8.05. Indemnity for Government Obligations ........................................... 61
8.06. Reinstatement .................................................................. 61
ARTICLE IX
Amendments
9.01. Without Consent of Holders ..................................................... 61
9.02. With Consent of Holders ........................................................ 62
9.03. Compliance with Trust Indenture Act ............................................ 63
9.04. Revocation and Effect of Consents and Waivers .................................. 63
9.05. Notation on or Exchange of Notes ............................................... 63
9.06. Trustee to Sign Amendments ..................................................... 64
9.07. Payment for Consent ............................................................ 64
ARTICLE X
Collateral and Security
10.01. Security Documents ............................................................. 64
10.02. Recording and Opinions ......................................................... 65
10.03. Release of Collateral .......................................................... 65
10.04. Certificates and Opinions of Counsel ........................................... 67
10.05. Certificates of the Trustee .................................................... 67
10.06. Authorization of Actions to Be Taken by the Trustee Under the Security Documents 67
10.07. Authorization of Receipt and Distribution of Funds by the Trustee Under the
Security Documents ............................................................. 68
10.08. Termination of Security Interest ............................................... 68
10.09. Trustee Serving as Collateral Agent; Amendments or Supplements to, or
Replacements of, the Security Documents ........................................ 68
10.10. Designations ................................................................... 69
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ARTICLE XI
Note Guarantees
11.01. Note Guarantees ................................................................ 69
11.02. Limitation on Liability ........................................................ 71
11.03. Releases of Note Guarantees .................................................... 71
11.04. Successors and Assigns ......................................................... 71
11.05. No Waiver ...................................................................... 71
11.06. Modification ................................................................... 72
11.07. Execution of Supplemental Indenture for Future Guarantors ...................... 72
11.08. Non-Impairment ................................................................. 72
ARTICLE XII
Miscellaneous
12.01. Trust Indenture Act Controls ................................................... 72
12.02. Notices ........................................................................ 72
12.03. Communication by Holders with Other Holders .................................... 73
12.04. Certificate and Opinion as to Conditions Precedent ............................. 73
12.05. Statements Required in Certificate or Opinion .................................. 73
12.06. When Notes Disregarded ......................................................... 74
12.07. Rules by Trustee, Paying Agent and Registrar ................................... 74
12.08. Legal Holidays ................................................................. 74
12.09. GOVERNING LAW .................................................................. 74
12.10. No Recourse Against Others ..................................................... 74
12.11. Successors ..................................................................... 74
12.12. Multiple Originals ............................................................. 75
12.13. Table of Contents; Headings .................................................... 75
12.14. Notice of Discharge of Senior Lender Claims .................................... 75
Exhibit A - Form of Note
Exhibit B - Form of Supplemental Indenture
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INDENTURE dated as of ____________________, 2004, among REPTRON
ELECTRONICS, INC., a Florida corporation (the "Company"), and HSBC BANK USA, a
New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's Senior
Secured Notes due 2009 issued hereunder (the "Notes"). On the date hereof,
$30,000,000 in aggregate principal amount of Notes will be initially issued.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person, (a)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
excluding Indebtedness Incurred in connection with, or in contemplation of, such
other Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and (b) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person in existence prior to such acquisition and not
incurred in connection with, or in contemplation of, such acquisition.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Section 4.07 only, "Affiliate" shall also mean any beneficial owner
of shares representing more than 10% of the total voting power of the Voting
Stock (on a fully diluted basis) of the Company or of rights or warrants to
purchase such Voting Stock (whether or not currently exercisable) and any Person
who would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in the Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Disposition" means any sale, lease (other than an operating
lease), transfer or other disposition (or series of related sales, leases,
transfers or dispositions) by the Company or any Restricted Subsidiary,
including any disposition by means of a merger, consolidation or similar
transaction (each referred to for the purposes of this definition as a
"disposition"), of (a) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary), (b) all
or substantially all the assets of the Company or any Restricted Subsidiary (the
words "substantially all" meaning, solely for purposes of this clause (b),
assets comprising
66-2/3% or more of the Company or such Restricted Subsidiary, as the case may
be) or (c) any other assets of the Company or any Restricted Subsidiary outside
of the ordinary course of business of the Company or such Restricted Subsidiary
(other than, in the case of (a), (b) and (c) above, (i) a disposition by the
Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company
or to another Restricted Subsidiary, (ii) an issuance of Capital Stock by a
Subsidiary to the Company or to a Restricted Subsidiary, (iii) for purposes of
Section 4.06 only, a disposition that constitutes a Restricted Payment permitted
by Section 4.04, (iv) a disposition of Temporary Cash Investments, the proceeds
of which are used within five Business Days to make another Permitted
Investment, (v) a disposition of obsolete, uneconomical, worn out or surplus
property or equipment in the ordinary course of business and the periodic
clearance of aged inventory, (vi) the sale or disposition of any assets or
property received as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries of any secured Investment or any other transfer of title
with respect to any secured Investment in default, and (vii) the licensing of
intellectual property in the ordinary course of business or in accordance with
industry practice. Notwithstanding the foregoing, the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole will be governed by the provisions of Sections
4.08 and/or 5.01 and not by the provisions of Section 4.06.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate implicit in such transaction, determined in accordance with GAAP)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended or may be, at the option of the
lessor, extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the number of years obtained by dividing
(a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the then
outstanding sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof. It is understood and agreed that Refinancing
Indebtedness in respect of the Credit Agreement may be Incurred from time to
time after termination of the Credit Agreement.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of the Board of Directors
of the Company.
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"Board Resolution" means a copy of a resolution certified by a
secretary or assistant 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 each day which is not a Legal Holiday.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Capital Stock" of any Person means any and all shares, partnership,
membership or other interests, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock (but excluding any debt securities convertible into such equity) and any
rights to purchase, warrants, options or similar interests with respect to the
foregoing.
"Change of Control" means the occurrence of any of the following
events from and after the effectiveness of the Amended Plan of Reorganization of
the Company confirmed on or about January 14, 2004 by the United States
Bankruptcy Court for the Southern District of Florida:
(a) any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 40% of the total voting power of the Voting
Stock of the Company, whether as a result of issuance of securities of the
Company, any merger, consolidation, liquidation or dissolution of the Company,
or otherwise;
(b) the adoption of a plan relating to the liquidation or
dissolution of the Company; or
(c) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company, or the sale of
all or substantially all the assets of the Company to another Person, and, in
the case of any such merger or consolidation, the securities of the Company that
are outstanding immediately prior to such transaction and which represent 100%
of the aggregate voting power of the Voting Stock of the Company are changed
into or exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition to
any other consideration, securities of the surviving Person or transferee or a
Person controlling such surviving Person or transferee that represent
immediately after such transaction, at least a majority of the aggregate voting
power of the Voting Stock of the surviving Person or transferee or a Person
controlling such surviving Person or transferee.
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"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all property and assets of the Company or any
Guarantor with respect to which from time to time a Lien is granted as security
for the Notes or the Note Guarantees pursuant to the applicable Security
Documents.
"Collateral Agent" means the Trustee in its capacity as collateral
agent under the Security Documents or any successor thereto, or any Person
otherwise designated as the "Collateral Agent" pursuant thereto.
"Commission" means the Securities and Exchange Commission.
"Commodity Hedge Obligations" means with respect to any Person any
commodity price protection agreement or other commodity price hedging
arrangement or other similar agreement or arrangement as to which such Person is
party.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters for which internal financial statements
are available prior to the date of such determination to (b) Consolidated
Interest Expense for such four fiscal quarters; provided, however, that (i) if
the Company or any Restricted Subsidiary has Incurred any Indebtedness since the
beginning of such period that remains outstanding on such date of determination
or if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving effect on a
pro forma basis to such Indebtedness as if such Indebtedness had been Incurred
on the first day of such period (in each case other than Indebtedness Incurred
under any revolving credit facility, in which case interest expense shall be
computed based upon the average daily balance of such Indebtedness during the
applicable period) and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such period,
(ii) if the Company or any Restricted Subsidiary has repaid, repurchased,
defeased or otherwise discharged any Indebtedness since the beginning of such
period or if any Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged (in each case, if such Indebtedness has been permanently
repaid and has not been replaced, other than Indebtedness Incurred under any
revolving credit facility unless such Indebtedness is permanently reduced, in
which case interest expense shall be computed based upon the average daily
balance of such Indebtedness during the applicable period) on the date of the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio, EBITDA and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis as if such discharge had occurred on the first
day of such period and as if the Company or such Restricted Subsidiary has not
earned any interest income actually earned during such period in respect of cash
or Temporary Cash Investments used to
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repay, repurchase, defease or otherwise discharge such Indebtedness, (iii) if
since the beginning of such period the Company or any Restricted Subsidiary
shall have made any Asset Disposition, EBITDA for such period shall be reduced
by an amount equal to EBITDA (if positive) directly attributable to the assets
that are the subject of such Asset Disposition for such period or increased by
an amount equal to EBITDA (if negative) directly attributable thereto for such
period and Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (iv) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Indebtedness)
as if such Investment or acquisition occurred on the first day of such period
and (v) if since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or was merged with or into the Company or any
Restricted Subsidiary since the beginning of such period) shall have made any
Asset Disposition or any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (iii) or (iv) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of assets
occurred on the first day of such period. For purposes of this definition,
whenever pro forma effect is to be given to an acquisition of assets, the amount
of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection therewith, the
pro forma calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Company. Any such pro forma calculations
shall reflect any pro forma expense and cost reductions attributable to such
acquisitions, to the extent such expense and cost reduction would be permitted
by the Commission to be reflected in pro forma financial statements included in
a registration statement filed with the Commission. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Company or its Restricted Subsidiaries in
such period but not included in such interest expense, without duplication: (a)
interest expense attributable to Capitalized Lease Obligations and the imputed
interest with respect to Attributable Debt, (b) amortization of debt discount,
(c) amortization of debt issuance costs, (d) capitalized interest, (e) noncash
interest expense, (f)
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commissions, discounts and other fees and charges attributable to letters of
credit and bankers' acceptance financing, (g) interest accruing on any
Indebtedness of any other Person to the extent such Indebtedness is Guaranteed
by the Company or any Restricted Subsidiary, (h) net costs associated with
Hedging Obligations (including amortization of fees), (i) dividends in respect
of all Disqualified Stock of the Company and all Preferred Stock of any of the
Restricted Subsidiaries of the Company, to the extent held by Persons other than
the Company or another Restricted Subsidiary, (j) interest Incurred in
connection with investments in discontinued operations, and (k) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust.
"Consolidated Net Income" means, for any period, the net income of
the Company and its Consolidated Subsidiaries for such period determined in
accordance with GAAP; provided, however, that:
(a) any net income of any Person (other than the Company), if such
Person is not a Restricted Subsidiary, shall be excluded from such Consolidated
Net Income, except that (i) subject to the limitations contained in clause (c)
below, the Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution made to a Restricted Subsidiary, to the
limitations contained in clause (b) below) and (ii) the Company's equity in a
net loss of any such Person for such period shall be included in determining
such Consolidated Net Income;
(b) any net income (or loss) of any Restricted Subsidiary, to the
extent that the declaration of dividends or similar distributions by such
Restricted Subsidiary of that income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or is, directly or indirectly, restricted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary or its
stockholders or other holders of its equity, shall be excluded from such
Consolidated Net Income, except that (i) subject to the limitations contained in
clause (d) below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such Restricted
Subsidiary during such period to the Company or another Restricted Subsidiary as
a dividend or other distribution (subject, in the case of a dividend or other
distribution made to another Restricted Subsidiary, to the limitation contained
in this clause) and (ii) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(c) any gain (or loss) realized upon the sale or other disposition
of any asset of the Company or its Consolidated Subsidiaries (including pursuant
to any Sale/Leaseback Transaction) that is not sold or otherwise disposed of in
the ordinary course of business and any gain (or loss) realized upon the sale or
other disposition of any Capital Stock of any Person shall be excluded from such
Consolidated Net Income (without regard to abandonments or reserves related
thereto);
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(d) any extraordinary gain or loss shall be excluded from such
Consolidated Net Income;
(e) the cumulative effect of a change in accounting principles shall
be excluded from such Consolidated Net Income; and
(f) gains or losses due solely to fluctuations in currency values
and the related tax effects according to GAAP shall be excluded from such
Consolidated Net Income.
"Consolidation" means the consolidation of the amounts of each of
the Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary shall
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the Loan and Security Agreement dated as
of_________, 2004, among the Company, the lenders named therein and Congress
Financial Corporation (Florida), as agent, including any guarantees, collateral
documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof (except to the extent that any such amendment, supplement,
modification, extension, renewal, restatement or refunding would be prohibited
by the terms of this Indenture, unless otherwise agreed to by the Holders of at
least a majority in aggregate principal amount of Notes at the time outstanding)
and any Credit Facilities with banks that Refinance all or any part of the
loans, other Credit Facilities or commitments thereunder, including any such
Refinancing facility that increases the amount borrowable thereunder or alters
the maturity thereof, provided that the maximum aggregate principal amount under
the Credit Agreement shall not exceed $60.0 million less any amounts repaid
under the Credit Agreement under clause (w) of Section 4.06(a).
"Credit Facilities" means one or more debt facilities (including the
Credit Agreement) or commercial paper facilities, providing for revolving credit
loans, term loans, receivables financing (including through the sale of
receivables to lenders or to special purpose entities formed to borrow from
lenders against such receivables) or letters of credit, or any debt securities
or other form of debt financing (including convertible or exchangeable debt
instruments), in each case, as amended, supplemented, modified, extended,
renewed, restated or refunded in whole or in part from time to time.
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreements or other similar agreement or
arrangement to which such Person is a party.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
-7-
"Definitive Notes" means one or more certificated Notes registered
in the name of the Holder thereof and issued in accordance with Section 2.07
hereof, substantially in the form of Exhibit A hereto, except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.04 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Discharge of First Lien Obligations" means payment in full in cash
of the principal of and interest and premium, if any, on all Indebtedness
outstanding under the First-Lien Credit Facilities, in each case after or
concurrently with termination of all commitments to extend credit thereunder,
and payment in full of any other monetary obligations that are due and payable
or otherwise accrued and owing under such First-Lien Credit Facility at or prior
to the time such principal, interest and premium, if any, are paid.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock, or (c) is redeemable at the option of the
holder thereof, in whole or in part, in the case of clauses (a), (b) and (c) on
or prior to 90 days after the Stated Maturity of the Notes; provided, however,
that only the portion of Capital Stock that so matures or is mandatorily
redeemable, is so convertible or exchangeable or is so redeemable at the option
of the holder thereof prior to the Stated Maturity of the Notes shall be deemed
Disqualified Stock; provided further, however, that (i) 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 90 days after the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions of Sections 4.06 and 4.08,
(ii) a class of Capital Stock shall not be Disqualified Stock hereunder solely
as a result of any maturity or redemption that is conditioned upon, and subject
to, compliance with the Section 4.04 and (iii) Capital Stock issued to any plan
for the benefit of employees shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Company in order to satisfy
applicable statutory or regulatory obligations.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for such
period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) provision for taxes based on
income or profits of the Company and its Consolidated Restricted Subsidiaries,
(b) Consolidated Interest Expense, (c) depreciation expense of the Company and
its Consolidated Restricted Subsidiaries, and (d) amortization expense
(including amortization of goodwill and other intangibles) of the Company and
its
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Consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges of, a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be dividended or similarly distributed to the Company by such
Restricted Subsidiary without prior governmental approval (that has not been
obtained) or is not, directly or indirectly, restricted by operation of the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders or other holders of its equity.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. For all
purposes of this Indenture, Fair Market Value will be determined in good faith
by the Board of Directors, whose determination will be conclusive and evidenced
by a resolution of the Board of Directors.
"First-Lien Credit Facilities" means (a) the Credit Facilities
provided pursuant to the Credit Agreement (up to, in the case of principal, that
principal amount set forth in the Intercreditor Agreement as Senior Debt
thereunder) and (b) the Other First-Lien Debt.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
that is not organized under the laws of the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those set forth in
(a) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) statements and
pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission. All ratios and computations based on GAAP contained in this
Indenture shall be computed in conformity with GAAP.
"Gaylord Mortgage" means that certain Mortgage, Assignment of Leases
and Rents, Security Agreement and Fixture Filing, dated as of July 5, 1988, by
and from the Company to Northeast Michigan Development Company, pertaining to
1746 X'Xxxxxx, Xxxxxxx, Otsego County, Michigan.
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"Global Note" means the permanent global Note substantially in the
form of Exhibit A hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary or its nominee.
"Global Note Legend" means the legend set forth in Section 2.07(f),
which is required to be placed on the Global Note issued under this Indenture.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means any Subsidiary that has issued a Note Guarantee.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Hibbing Mortgage" means that certain Collateral Assignment of
Contract for Deed, dated as of April 1, 2002, by and from the Company to Hibbing
Community College, pertaining to Xxxx 0 & 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Part,
Hibbing, St. Louis County, Minnesota.
"Hibbing Purchase Money Loans" means all amounts due and owing under
that certain contract for deed, dated April 1, 2002, between the Company, as
buyer, and the State of Minnesota.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation
of any Person, to issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing immediately after the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a Subsidiary. The term "Incurrence" when
used as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication, the following items if and to the extent
that any of them (other than items
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specified under clauses (c), (f), (i) and (j) below) would appear as a liability
or, in the case of clause (g) only, Preferred Stock on the balance sheet of such
Person, prepared in accordance with GAAP, on such date:
(a) the principal amount of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal amount of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(c) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with respect
thereto but excluding obligations in respect of letters of credit issued in
respect of Trade Payables);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which purchase
price is due more than twelve months after the date of placing such property in
service or taking delivery and title thereto or the completion of such services;
(e) all Capitalized Lease Obligations of such Person;
(f) all Attributable Debt of such Person;
(g) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or, with
respect to any Subsidiary of such Person, any Preferred Stock (but excluding, in
each case, any accrued dividends);
(h) 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, however, that the amount of Indebtedness of such Person shall be the
lesser of (i) the Fair Market Value of such asset at such date of determination
and (ii) the amount of such Indebtedness of such other Persons;
(i) Hedging Obligations of such Person; and
(j) all obligations of the type referred to in clauses (a) through
(i) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations described above, at such
date; provided, however, that the amount outstanding at any time of any
Indebtedness issued with original issue discount will be deemed to be the face
amount of such Indebtedness less the remaining unaccreted portion of the
original issue discount of such Indebtedness at such time, as determined in
accordance with GAAP.
-11-
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Indenture Documents" means (a) this Indenture, the Notes, the Note
Guarantees, the Intercreditor Agreement and the Security Documents and (b) any
other related document or instrument executed and delivered pursuant to any
Indenture Document described in clause (a) of this definition evidencing or
governing Obligations.
"Intercreditor Agreement" means (a) the Intercreditor and
Subordination Agreement dated as of ____________, 2004, among the Company,
Congress Financial Corporation (Florida), as credit agent, and HSBC Bank USA, as
trustee under this Indenture, as amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time, and
(b) any substantially identical agreement hereafter entered into that is not
inconsistent with this Indenture.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or other
extension of credit (including by way of Guarantee or similar arrangement but
excluding commission, travel and similar advances to officers, consultants and
employees made in the ordinary course of business) or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04, (a) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value of the
net assets of any Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (i) the Company's "Investment" in
such Subsidiary at the time of such redesignation less (ii) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time of such
redesignation; and (b) 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 any conditional sale or other title
retention agreement or lease in the nature thereof).
"Mortgaged Property" means (a) initially, the parcels of real
property located at 00000 Xxxxxxx Xxxx., Xxxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx
00000; 0000 X'Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx 00000; 0000 Xxxx 00xx
Xxxxxx, Xxxxxxx, Xx. Xxxxx Xxxxxx, Xxxxxxxxx 00000 and the improvements thereto
owned by the Company, and (b) includes each other parcel
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of real property and the improvements thereto with respect to which a Mortgage
is granted pursuant to Section 4.11.
"Mortgages" means mortgages, deeds of trust, assignments of leases
and rents, leasehold mortgages or other security documents granting a Lien on
any Mortgaged Property to secure the Obligations.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other noncash form) therefrom, in each case
net of (a) all direct costs relating to such Asset Disposition, including all
legal, title, accounting and investment banking fees, and recording tax
expenses, sales and other commissions and other fees and relocation expenses
incurred, and all Federal, state, provincial, foreign and local taxes required
to be paid or accrued as a liability under GAAP, (b) all payments made on any
Indebtedness that (i) is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or (ii) must, by its terms,
or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset Disposition, (c)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition
and (d) appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or
other assets disposed of in such Asset Disposition and retained by the Company
or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Note Guarantee" means each Guarantee of the obligations with
respect to the Notes issued by a Subsidiary of the Company pursuant to the terms
of this Indenture.
"Notes" means the Notes issued under this Indenture.
"Obligations" means all obligations of the Company and the
Guarantors under this Indenture, the Notes and the other Indenture Documents,
including obligations to the Trustee and the Collateral Agent whether for
payment of principal of, premium, if any, or interest on the Notes and all other
monetary obligations of the Company and the Guarantors under the Indenture, the
Notes and the other Indenture Documents, whether for fees, expenses,
indemnification or otherwise.
-13-
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the Chief Financial Officer, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of such Person.
"Officers' Certificate" means a certificate signed by two Officers
of each Person issuing such certificate, one of such Officers signing an
Officers' Certificate pursuant to Section 4.09 hereof to be the principal
executive, financial or accounting officer of such Person.
"Opinion of Counsel" means a written opinion (subject to customary
assumptions and exclusions) from legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company, a
Guarantor or the Trustee.
"Other First-Lien Debt" means (a) the Tampa Mortgage, (b) the
Gaylord Mortgage, (c) the Hibbing Mortgage, (d) any refinancing of the
Indebtedness secured by the Tampa Mortgage, the Gaylord Mortgage or the Hibbing
Mortgage; provided, that the entire net proceeds of any such refinancing is
applied within 30 days of the receipt thereof in the manner called for by clause
(w) of Section 4.06(a) as if such proceeds were received from an Asset
Disposition, (e) the Transamerica Loan, (f) the Hibbing Purchase Money Loans,
and (g) any other Credit Facilities (excluding the Credit Agreement) which, in
the case of such other Credit Facilities referred to in this clause (g), (i) do
not exceed (x) $5.0 million in aggregate principal amount less (y) any amounts
repaid under the Other First-Lien Debt under clause (w) of Section 4.06(a) in
respect of such other Credit Facilities referred to in this clause (g), (ii) are
designated by the Company as "First-Lien Credit Facilities" for the purposes of
this Indenture, and (iii) are secured by a Permitted Lien described in clause
(a) of the definition thereof.
"Participant" means, with respect to the Depositary, a Person who
has an account with the Depositary.
"Permitted Business" means any business engaged in by the Company or
any Restricted Subsidiary on the Closing Date and any Related Business.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary (a) in the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted Subsidiary is a
Permitted Business; (b) in another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Permitted Business;
(c) in Temporary Cash Investments; (d) in receivables owing to the Company or
any Restricted Subsidiary if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary trade
terms as the Company or any such Restricted Subsidiary deems reasonable under
the circumstances; (e) in payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course of
business; (f) in stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments; (g) in any Person to the
extent such Investment
-14-
represents the noncash portion of the consideration received for an Asset
Disposition that was made pursuant to and in compliance with Section 4.06; (h)
that constitutes a Hedging Obligation or Commodity Hedge Obligation entered into
for bona fide hedging purposes of the Company in the ordinary course of business
and otherwise in accordance with this Indenture; (i) in securities of any trade
creditor or customer received in settlement of obligations or pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of such trade creditor or customer; (j) acquired as a result of a foreclosure by
the Company or such Restricted Subsidiary with respect to any secured Investment
or other transfer of title with respect to any secured Investment in default;
(k) existing as of the Closing Date or an Investment consisting of any
extension, modification or renewal of any Investment existing as of the Closing
Date (excluding any such extension, modification or renewal involving additional
advances, contributions or other investments of cash or property or other
increases thereof unless it is a result of the accrual or accretion of interest
or original issue discount or payment-in-kind pursuant to the terms, as of the
Closing Date, of the original Investment so extended, modified or renewed); (l)
consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or licenses or leases of intellectual property, in any case, in the
ordinary course of business and otherwise in accordance with this Indenture; (m)
consisting of intercompany Indebtedness permitted under Section 4.03; and (n)
the consideration for which consists solely of shares of common stock of the
Company.
"Permitted Liens" means any of the following Liens: (a) Liens upon
any property of the Company or any Restricted Subsidiary securing any
Indebtedness permitted under Section 4.03(b)(i) or 4.03(b)(ii) hereof and all
other obligations of the Company or any Restricted Subsidiary in respect of such
Indebtedness not constituting Indebtedness; (b) Liens securing the Notes and the
Note Guarantees; (c) Liens in favor of the Company or any Restricted Subsidiary;
(d) Liens on property of a Person existing at the time such Person is merged
with or into or consolidated with or acquired by the Company or any Restricted
Subsidiary; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation or acquisition and do not extend
to any assets other than those of the Person merged into or consolidated with or
acquired by the Company or the Restricted Subsidiary; (e) Liens on property
existing at the time of acquisition of the property by the Company or any
Restricted Subsidiary; provided that such Liens were in existence prior to the
contemplation of such acquisition; (f) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other appropriate provision
as is required in conformity with GAAP has been made therefor; (g) Liens
incurred in the ordinary course of business including judgment and attachment
liens of the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed in the aggregate $5.0 million at any one time
outstanding and that are not incurred in connection with the borrowing of money
or the obtaining of advances of credit (other than trade credit in the ordinary
course of business, not evidenced by a note and not past due); (h) Liens in
favor of the Trustee; (i) Liens incurred in connection with Refinancing
Indebtedness, but only if such Liens extend to no more assets than the Liens
securing the Indebtedness being Refinanced; (j) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's,
or other like Liens (including contractual landlords liens) arising in the
ordinary course of business and with respect to amounts not yet delinquent by
more than 30 days or being contested in good faith by appropriate proceedings,
if a reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP
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shall have been made therefor; (k) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (l) easements, zoning
restrictions, rights-of-way, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances not interfering in any material
respect with the business of the Company or any of its Restricted Subsidiaries;
(m) any interest or title of a lessor in the property subject to any lease or
arising from filing UCC financing statements regarding leases; (n) judgment
Liens in respect of judgments that do not constitute an Event of Default; (o)
Liens existing on the date hereof; (p) Liens incurred or deposits made to secure
the performance of tenders, bids, leases, statutory obligations, surety and
appeal bonds, government contracts, performance and return of money bonds and
other obligation of a like nature incurred in the ordinary course of business;
(q) ground leases in respect of real property on which facilities owned or
leased by the Company or any of its Restricted Subsidiaries are located; (r)
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;
(s) leases or subleases granted to other Persons and not interfering in any
material respect with the business of the Company and its Restricted
Subsidiaries, taken as a whole; and (t) Liens arising solely by virtue of any
statutory or common law provision relating to banker's liens, rights of setoff
or similar rights.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"Qualified Proceeds" means any of the following or any combination
of the following: (a) cash, (b) Temporary Cash Investments, (c) the Fair Market
Value of assets that are used or useful in the Permitted Business and (d) the
Fair Market Value of the Capital Stock of any Person engaged primarily in a
Permitted Business if, in connection with the receipt by the Company or any
Restricted Subsidiary of the Company of such Capital Stock, (i) such Person
becomes a Restricted Subsidiary or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or any Restricted Subsidiary.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary (including Indebtedness of the Company that Refinances
Refinancing Indebtedness); provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of
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the Indebtedness being Refinanced, (b) the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is Incurred that is equal
to or greater than the Average Life of the Indebtedness being refinanced, (c)
such Refinancing Indebtedness is Incurred in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced, (d) if the Indebtedness being refinanced is subordinated in
right of payment to the Notes, such Refinancing Indebtedness is subordinated in
right of payment to the Notes at least to the same extent as the Indebtedness
being Refinanced, and (e) if the Indebtedness being Refinanced is secured with
Liens junior to the Liens securing the Notes and the Note Guarantees, any Liens
securing such Refinancing Indebtedness are junior to the Liens securing the
Notes and the Note Guarantees; provided further, however, that Refinancing
Indebtedness shall not include (i) Indebtedness of a Restricted Subsidiary that
Refinances Indebtedness of the Company or (ii) Indebtedness of the Company or a
Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.
"Related Business" means any business related, ancillary or
complementary to any of the businesses of the Company and the Restricted
Subsidiaries on the Closing Date.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Wholly Owned
Restricted Subsidiary or between Wholly Owned Restricted Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement dated
_____________, 2004, among the Company, the Grantors (as defined therein) and
the Collateral Agent, as amended, supplemented or modified from time to time in
accordance with the terms thereof and of this Indenture.
"Security Documents" means (a) the Security Agreement, the
Mortgages, the Intercreditor Agreement and any other document or instrument
pursuant to which a Lien is granted by the Company or any Guarantor to secure
any Obligations or under which rights or remedies with respect to such Lien are
governed, as such agreements may be amended, modified or supplemented from time
to time and (b) substantially identical agreements hereafter entered into
pursuant to Section 10.09(c). Prior to the Discharge of First Lien Obligations,
the "Security Documents" will mean the Security Documents among the Company, the
Guarantors and the Collateral Agent, as such agreements may be amended, modified
or supplemented from time to time in accordance with their terms or this
Indenture.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and
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payable, including pursuant to any mandatory redemption provision (but excluding
any provision providing for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency beyond the control of the
issuer unless such contingency has occurred).
"Subordinated Indebtedness" means any Indebtedness of the Company
(whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total Voting
Stock is at the time owned or controlled, directly or indirectly, by (a) such
Person, (b) such Person and one or more Subsidiaries of such Person or (c) one
or more Subsidiaries of such Person.
"Tampa Mortgage" means that certain Mortgage, Assignment of Leases
and Rents, Security Agreement and Fixture Filing, dated as of February 29, 2000,
by and from the Company to General Electric Capital Business Asset Funding
Corporation, pertaining to 00000 Xxxxxxx Xxxx., Xxxxx, Xxxxxxxxxxxx Xxxxxx,
Xxxxxxx.
"Temporary Cash Investments" means any of the following: (a) any
investment in direct obligations of the United States of America or any agency
thereof or obligations Guaranteed by the United States of America or any agency
thereof, (b) investments in time deposit accounts, certificates of deposit and
money market deposits maturing not more than one year from the date of
acquisition thereof, bankers' acceptances with maturities not exceeding one year
and overnight bank deposits, in each case with a bank or trust company that is
organized under the laws of the United States of America, any state thereof
(including any foreign branch of any of the foregoing) or any foreign country
recognized by the United States of America having capital, surplus and undivided
profits aggregating in excess of $250,000,000 (or the foreign currency
equivalent thereof), (c) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (a) above or
clause (e) below entered into with a bank meeting the qualifications described
in clause (b) above, (d) investments in 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 or any foreign country recognized by the United States
of America having at the time as of which any investment therein is made one of
the two highest ratings obtainable from either Xxxxx'x Investors Service, Inc.
("Moody's") or Standard and Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P"), (e) investments in securities with
maturities of six months or less from the date of acquisition issued or fully
Guaranteed by any state, commonwealth or territory of the United States of
America, or by any foreign government or any state, commonwealth or territory or
by any political subdivision or taxing authority thereof, and, in each case,
having one of the two highest ratings obtainable from either S&P or Moody's; and
(f) investments in funds (including, without limitation, the HSBC Money Market
Fund) investing exclusively in investments of the types described in clauses (a)
and (e) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended by the Trust Indenture Reform Act of 1990, as in
effect on the Closing Date;
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provided, however, that if the TIA is further amended after such date, TIA
means, to the extent required by any such further amendment, the Trust Indenture
Act of 1939 as so further amended.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transamerica Loan" means all amounts owing under the Master Lease
Agreement, dated December 18, 2000, between the Company, as lessee, and
Transamerica Equipment Financial Services Corporation, as assignee of Celtic
Leasing Corp., as assignee.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any vice president, assistant vice president
or trust officer of the Trustee with direct responsibility for the
administration of this Indenture.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (b) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any other Subsidiary of the Company that
is not a Subsidiary of the Subsidiary to be so designated; provided, however,
that either (i) the Subsidiary to be so designated has total Consolidated assets
of $1,000 or less or (ii) if such Subsidiary has Consolidated assets greater
than $1,000, then such designation would be permitted under Section 4.04. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation (a) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (b) no Default shall have occurred and be continuing. Any
such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Board of Directors shall be evidenced by a Board Resolution
and an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled at the time to vote in the election of
directors, managers or trustees thereof.
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"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.
1.02. Other Definitions. The following terms have the definitions
set forth in the Sections listed below.
Defined in
Term Section
---- -------
"Affiliate Transaction"............. 4.07(a)
"Authentication Order".............. 2.03
"Bankruptcy Law".................... 6.01
"Change of Control Offer"........... 4.08(b)
"covenant defeasance option"........ 8.01(b)
"Event of Default".................. 6.01
"Excess Proceeds"................... 4.06(b)
"Guaranteed Obligations"............ 11.01
"incorporated provision"............ 12.01
"legal defeasance option"........... 8.01(b)
"Legal Holiday"..................... 12.08
"Notes"............................. Preamble
"Notice of Default"................. 6.01
"Offer"............................. 4.06(b)
"Offer Amount"...................... 4.06(c)(ii)
"Offer Period"...................... 4.06(c)(ii)
"Paying Agent"...................... 2.04
"Permitted Debt".................... 4.03(b)
"Purchase Date"..................... 4.06(c)(i)
"Receiver".......................... 6.01
"Registrar"......................... 2.04
"Required Information".............. 4.02
"Restricted Payment"................ 4.04(a)
"Successor Company"................. 5.01(a)
1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the Commission.
"indenture securities" means the Notes and the Note Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule have the
meanings assigned to them by such definitions.
1.04. Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance
with GAAP; and
(g) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater.
ARTICLE II
THE NOTES
2.01.Amount of Notes. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is $30,000,000, except
as provided in Sections 2.07, 2.08, 2.09, 2.11, 3.06, 4.06 and 9.05.
2.02.Form and Dating.
(a) General. The Note and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Note
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Note
shall be issued only in registered form without coupons, and shall be issued
only in minimum denominations of $1,000 and larger integral multiples of $1,000.
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The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and 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. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Note. The Note issued in global form shall be
substantially in the form of Exhibit A hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Definitive Notes shall be issued substantially in the form of Exhibit
A hereto (but without the Global Note Legend thereon and without the "Schedule
of Exchanges of Interests in the Global Note" attached thereto). The Global Note
shall represent such of the outstanding Notes as shall be specified therein and
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount at maturity of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of the Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian in accordance
with the terms hereof and otherwise in accordance with instructions given by the
Holder thereof as required by Section 2.07.
2.03. Execution and Authentication. One Officer of the Company shall
sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Notes, the Notes shall be valid
nevertheless.
A Note shall not be valid until an authorized officer of the Trustee
manually signs the certificate of authentication on the Notes. The signature
shall be conclusive evidence that the Notes has been authenticated under this
Indenture.
The Trustee shall, upon a written order of the Company signed by one
Officer of the Company (an "Authentication Order"), authenticate the Notes for
original issue of up to the aggregate principal amount set forth in Section
2.01. The aggregate principal amount of Notes outstanding at any time may not
exceed such amount except as provided in Section 2.08.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Any such appointment shall
be evidenced by an instrument signed by a Trust Officer, a copy of which shall
be furnished to the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
2.04. Registrar and Paying Agent, Depositary. (a) The Company shall
maintain in the Borough of Manhattan, the City of New York, an office or agency
where Notes may be presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Notes may be presented for payment
(the "Paying Agent"). The Registrar shall keep a
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register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent, and the term "Registrar"
includes any co-registrars. The Company initially appoints the Trustee as (i)
Registrar and Paying Agent in connection with the Notes and (ii) the Custodian
with respect to the Global Notes.
(b) The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee in writing of the name and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.07.
The Company or any of its domestically organized Wholly Owned Restricted
Subsidiaries may act as Paying Agent or Registrar.
(c) The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Company and the Trustee.
(d) The Company initially appoints the Trustee to act as the
Registrar and the Paying Agent with respect to the Notes.
(e) The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Note.
2.05. Paying Agent to Hold Money in Trust. Prior 10:00 a.m., New
York City time, on each due date of the principal of, premium, if any, and
interest on any Note, the Company shall deposit with the Paying Agent (or if the
Company or a domestically organized Wholly Owned Restricted Subsidiary is acting
as Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal, premium, if any, and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal of, premium, if any, or interest on the
Notes, shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. If the Company or a
domestically organized Wholly Owned Restricted Subsidiary acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed by
the Paying Agent. Upon complying with this Section, the Paying Agent shall have
no further liability for the money delivered to the Trustee.
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2.06. Holder Lists. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of all Holders of the Notes and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes and the Company shall otherwise comply
with TIA Section 312(a).
2.07. Transfer and Exchange.
(a) Transfer and Exchange of the Global Note. The Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary, or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. The Global Note
will be exchanged by the Company for Definitive Notes only if (i) the Company
delivers to the Trustee written notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary; (ii) the Company in its sole discretion
determines that the Global Note (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; or (iii) there has occurred and is continuing a Default or Event of
Default with respect to the Notes. Upon the occurrence of any of the preceding
events in clause (i), (ii) or (iii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Every Note
authenticated and delivered in exchange for, or in lieu of, the Global Note or
any portion thereof, pursuant to this Section 2.07 or Section 2.08 or 2.11, that
is not a Definitive Note shall be authenticated and delivered in the form of,
and shall be, the Global Note. The Global Note may not be exchanged for another
Note other than as provided in this Section 2.07(a); however, beneficial
interests in the Global Note may be transferred and exchanged as provided in
Section 2.07(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the Global
Note. The transfer and exchange of beneficial interests in the Global Note shall
be effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Note also shall require compliance with either clause (i) or (ii)
below, as applicable, as well as one or more of the other following clauses, as
applicable:
(i) Transfer of Beneficial Interests in the Global Note.
Beneficial interests in the Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial
interest in the Global Note. No written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers
described in this Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in the Global Note. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.07(b)(i), the transferor of such beneficial interest must deliver
to the Registrar either (A) (1) a written order from a
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Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures causing to be credited a
beneficial interest in the Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures causing to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the
participant to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to
effect the transfer or exchange referred to in clause (1) above.
Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in the Global Note contained in
this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount at
maturity of the Global Note pursuant to Section 2.07(g).
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes. If any holder of a beneficial interest in the Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth in Section
2.07(b)(ii), the Trustee shall cause the aggregate principal amount at maturity
of the Global Note to be reduced accordingly pursuant to Section 2.07(g), and
the Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount at maturity. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.07(c) shall be registered in such
name or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such Notes are
so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests. A Holder of a Definitive Note may exchange such Note for a beneficial
interest in the Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in the Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Definitive Note and increase or cause to be
increased the aggregate principal amount at maturity of the Global Note,
pursuant to Section 2.07(g).
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. A Holder of Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of a
Definitive Note. Upon receipt of a request to register such
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a transfer, the Registrar shall register the Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Global Note Legend. The Global Note shall bear a legend in
substantially the following form:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
(g) Cancellation or Adjustment of the Global Note. At such time as
all beneficial interests in the Global Note have been exchanged for Definitive
Notes or the Global Note has been redeemed, repurchased or canceled in whole and
not in part, the Global Note shall be returned to or retained and canceled by
the Trustee in accordance with Section 2.12. At any time prior to such
cancellation, if any beneficial interest in the Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in the Global Note or for Definitive Notes, the principal
amount at maturity of Notes represented by the Global Note shall be reduced
accordingly, in the case of an exchange for Definitive Notes, and an endorsement
shall be made on the Global Note by the Trustee or by the Depositary in
accordance with applicable procedures to reflect such exchange or reduction; and
if the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in the Global
Note, the Global Note shall be increased accordingly and an endorsement shall be
made on the Global Note by the Trustee or by the Depositary in accordance with
applicable procedures to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
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(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate the Global
Note and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in the Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but
the Company or the Trustee 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 similar
governmental charge payable upon exchange or transfer pursuant to
Sections 2.11, 3.06, 4.06 and 9.05).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) The Global Note and all Definitive Notes issued upon any
registration of transfer or exchange of the Global Note or
Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Note or Definitive Notes surrendered
upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest payment
date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment
of principal of, premium, if any, and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate the Global Note and
Definitive Notes in accordance with the provisions of Section 2.03.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) Each Holder of a Note agrees to indemnify the Company and
the Trustee to their reasonable satisfaction against any liability
that may result from the transfer, exchange or assignment of such
Holder's Note in violation of any
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provision of this Indenture or applicable United States Federal or
state securities law.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among Depositary participants or beneficial
owners of interest in the Global Note) other than to require
delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express
requirements hereof.
2.08. Replacement Notes. If any mutilated Note is surrendered to the
Trustee or the Company and the Trustee receives evidence to its reasonable
satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee's requirements are met. An
indemnity bond must be supplied by the Holder that is sufficient in the
reasonable judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer if a Note is replaced. The Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Upon the issuance of any replacement Note under this Section 2.08,
the Company or the Trustee may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection therewith.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
2.09. Outstanding Notes. The Notes outstanding at any time are all
the Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in the Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.09 as not outstanding. Except as set forth in
Section 12.06, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount at maturity of any Note is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
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If the Paying Agent (other than the Parent, the Company, a
Subsidiary or an Affiliate of any of the foregoing) holds, by no later than
12:00 noon New York City time on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, and the Paying Agent is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, then on and after that date such Notes shall be deemed
to be no longer outstanding and shall cease to accrue interest.
2.10. Temporary Notes. In the event that Definitive Notes are to be
issued under the terms of this Indenture, until such Definitive Notes are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company consider appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate Definitive Notes and deliver them in exchange for
temporary Notes upon surrender of such temporary Notes at the office or agency
of the Company, without charge to the Holder.
2.11. Cancellation. The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment or cancellation and shall dispose of
canceled Notes in accordance with its customary procedures or deliver canceled
Notes to the Company pursuant to written direction by an Officer. The Company
may not issue new Notes to replace Notes it has redeemed, paid or delivered to
the Trustee for cancellation. The Trustee shall not authenticate Notes in place
of canceled Notes other than pursuant to the terms of this Indenture.
2.12. Payment of Interest; Defaulted Interest.
(a) Each of the Notes shall bear interest at the rate per annum of
7.0% for the period beginning on the Closing Date through and including January
__, 2006, and at the rate of 8.0% after January __, 2006. The Company shall pay
interest semiannually on January and June of each year, commencing on June __,
2004. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from the Closing Date, until the principal amount thereof is
paid.
(b) Interest shall be payable in cash. The Company shall pay
interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on the December __ or May
__ next preceding the interest payment date, even if Notes are canceled after
the record date and on or before the interest payment date.
(c) If the Company defaults in a payment of interest on the Notes,
the Company shall pay the defaulted interest (plus, to the extent lawful,
interest on such defaulted interest at the interest rate otherwise applicable
hereunder) in any lawful manner. The Company may pay the defaulted interest to
the Persons who are Holders on a subsequent special record date. The Company
shall fix or cause to be fixed any such special record date and payment date and
shall promptly mail or cause to be mailed to each Holder a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid. Such record date
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shall be not less than thirty (30) days prior to such payment date and such
payment date shall be not less than fifteen (15) days after the date such notice
is mailed to the Holders of the Notes.
2.13. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee in writing of any changes in any "CUSIP" numbers.
2.14. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
ARTICLE III
REDEMPTION
3.01. Notices to Trustee. If the Company elects to redeem Notes
pursuant to paragraph 5 of the Notes, it shall notify the Trustee in writing of
the redemption date and the principal amount of Notes to be redeemed.
The Company shall give each notice to the Trustee provided for in
this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption will comply with
the conditions herein. Any such notice may be canceled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
3.02. Selection of Notes To Be Redeemed. If fewer than all the Notes
are to be redeemed, the Trustee shall select the Notes to be redeemed pro rata
or by lot or by a method that the Trustee in its sole discretion shall deem to
be fair and appropriate. The Trustee shall make the selection from outstanding
Notes not previously called for redemption. The Trustee may select for
redemption portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of them the Trustee selects shall be in amounts
of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be redeemed.
3.03. Notice of Redemption. (a) At least 30 days but not more than
60 days before a date for redemption of Notes, the Company shall mail, at the
expense of the Company, a notice of redemption by first-class mail to each
Holder of Notes to be redeemed at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(i) the redemption date;
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(ii) the redemption price and the amount of accrued interest
to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amounts of the
particular Notes to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making
such payment pursuant to the terms of this Indenture, interest on
Notes (or portion thereof) called for redemption ceases to accrue on
and after the redemption date;
(vii) the CUSIP number, if any, printed on the Notes being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
(b) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
3.04. Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the redemption
date and at the redemption price stated in the notice. Upon surrender to the
Paying Agent, such Notes shall be paid at the redemption price stated in the
notice, plus accrued interest, to the redemption date; provided, however, that
if the redemption date is after a regular record date and on or prior to the
related interest payment date, the accrued interest shall be payable to the
Holder of the redeemed Notes registered on the relevant record date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
3.05. Deposit of Redemption Price. Prior to 10:00 a.m., New York
City time, on the redemption date, the Company shall deposit with the Paying
Agent (or, if either of the Company or a domestically organized Wholly Owned
Restricted Subsidiary of the Company is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date other than Notes or portions
of Notes called for redemption that have been delivered by the Company to the
Trustee for cancellation. On and after the redemption date, interest will cease
to accrue on Notes or portions thereof called for redemption so long as the
Company has deposited with the Paying Agent funds sufficient to pay the
principal of, premium, if any, and accrued and unpaid interest, on the Notes to
be redeemed, unless the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture. The Paying Agent shall promptly return
to the Company upon their written request any money deposited with the Paying
Agent by the Company that is in excess of
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the amounts necessary to pay the redemption price of and accrued interest on all
Notes to be redeemed.
3.06. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder (at the Company's expense) a new Note equal in principal amount
to the unredeemed portion of the Notes surrendered.
ARTICLE IV
COVENANTS
4.01. Payment of Notes. The Company shall promptly pay the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and in this Indenture. Principal, premium and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal, premium, if any, and interest then due and the Trustee or the Paying
Agent, as the case may be, is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal and premium at
the rate specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful. Notwithstanding
anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other
similar taxes imposed by the United States of America from principal, premium or
interest payments hereunder.
4.02. Commission Reports. If at any time the Company is no longer
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall provide the Trustee and Holders and prospective Holders
(upon request) within 15 days after it files them with the Commission (or would
be required to file with the Commission), copies of its annual report and the
information, documents and other reports that are specified in Section 13 and
15(d) of the Exchange Act (collectively, the "Required Information"); provided,
however, that if any of the Required Information is filed with the Commission,
the Company shall only be required to provide the Trustee copies of such
Required Information. In addition, the Company shall furnish to the Trustee,
promptly upon their becoming available, copies of the annual report to
shareholders and any other information provided by the Company to its public
shareholders generally. The Company also shall comply with the other provisions
of TIA Section 314(a). Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of such
reports shall not constitute constructive notice of any information contained
therein or determinable from the information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee shall be entitled to rely exclusively on Officers' Certificates).
4.03. Limitation on Incurrence of Additional Indebtedness. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, Incur,
directly or indirectly, any Indebtedness; provided, however, that the Company or
any Guarantor may Incur Indebtedness if
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on the date of such Incurrence and after giving effect thereto, the Consolidated
Coverage Ratio would be greater than 3.5:1.
(b) Notwithstanding Section 4.03(a), the Company and, to the extent
specified, its Restricted Subsidiaries may Incur the following Indebtedness
(collectively, "Permitted Debt"):
(i) Indebtedness of the Company or any Guarantor under the
Credit Agreement;
(ii) Indebtedness of the Company or any Guarantor under the
Other First-Lien Debt;
(iii) Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary
owed to and held by the Company or any other Restricted Subsidiary;
provided, however, that (1) any subsequent issuance or transfer of
any Capital Stock or any other event that results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of any such Indebtedness (except to the Company
or another Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the issuer
thereof, (2) if the Company is the obligor on such Indebtedness,
such Indebtedness is expressly subordinated to the prior payment in
full in cash of all obligations with respect to the Notes and (3) if
a Guarantor is the obligor, such Indebtedness is subordinated in
right of payment to the Notes Guarantee of such Guarantor;
(iv) Indebtedness represented by the Notes, the Note
Guarantees and any replacement Notes issued pursuant to this
Indenture;
(v) Indebtedness outstanding on the Closing Date (other than
the Indebtedness described in clause (i), (ii), (iii) or (iv) of
this Section 4.03(b));
(vi) Indebtedness consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in Section 4.03(a)
and in clauses (iv), (v), (vi) and (vii) of this Section 4.03(b);
(vii) Indebtedness consisting of Guarantees of (1) any
Indebtedness permitted under Section 4.03(a), so long as the Person
providing the Guarantee is a Guarantor or (2) any Indebtedness
permitted under this Section 4.03(b);
(viii) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of worker's compensation claims,
self-insurance obligations, performance bonds, bankers' acceptances,
letters of credit, surety, appeal or similar bonds and completion
guarantees provided by the Company and the Restricted Subsidiaries
in the ordinary course of their business; provided, however, that
upon the drawing of letters of credit for reimbursement obligations,
including with respect to workers' compensation claims, or the
Incurrence of other Indebtedness with respect to reimbursement type
obligations regarding
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workers' compensation claims, such obligations are reimbursed within
five Business Days following such drawing or Incurrence;
(ix) Indebtedness under Interest Rate Agreements and Currency
Agreements entered into for bona fide hedging purposes of the
Company in the ordinary course of business;
(x) Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five Business
Days of Incurrence;
(xi) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, Incurred or
assumed in connection with the disposition of any business, assets
or Capital Stock of the Company or any Restricted Subsidiary;
provided that (1) the maximum aggregate liability in respect of all
such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and its Subsidiaries in connection
with such disposition and (2) such Indebtedness is not reflected in
the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial
statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this
clause (2)); and
(xii) Indebtedness of the Company or any of its Restricted
Subsidiaries that is Acquired Debt, and any Refinancing Indebtedness
Incurred in respect thereof, in an aggregate principal amount at any
time outstanding not to exceed $5.0 million.
(c) Notwithstanding the foregoing, the Company shall not Incur any
Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Indebtedness of the Company unless such Indebtedness
shall be subordinated to the Notes to at least the same extent as such
Subordinated Indebtedness.
(d) For purposes of determining compliance with this Section 4.03,
(i) Indebtedness Incurred pursuant to the Credit Agreement prior to or on the
Closing Date shall be treated as Incurred pursuant to Section 4.03(b)(i), (ii)
Indebtedness Incurred pursuant to the Other First-Lien Debt prior to or on the
Closing Date shall be treated as Incurred pursuant to Section 4.03(b)(ii), (iii)
in the event that Indebtedness meets the criteria of more than one of the types
of Indebtedness described in this Section 4.03, the Company, in its sole
discretion, shall classify such Indebtedness and only be required to include the
amount of such Indebtedness in one of such clauses and (iv) the aggregate amount
of any Indebtedness Guaranteed pursuant to
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Section 4.03(b)(vii) will be included in the calculation of Indebtedness, but
the corresponding amount of the Guarantee will not be so included.
(e) Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Indebtedness will not be deemed to
be an Incurrence of Indebtedness for purposes of this Section 4.03.
4.04. Limitation on Restricted Payments. (a) The Company shall not,
and shall not permit any Restricted Subsidiary, directly or indirectly, to (i)
declare or pay any dividend or make any distribution on or in respect of the
Company's or any Restricted Subsidiary's Capital Stock (including any payment in
connection with any merger or consolidation involving the Company) or similar
payment to the direct or indirect holders of its Capital Stock except dividends
or distributions payable solely in its Capital Stock (other than Disqualified
Stock) and except dividends or distributions payable to the Company or another
Restricted Subsidiary (and, if such Restricted Subsidiary has shareholders other
than the Company or other Restricted Subsidiaries, to its other shareholders on
a pro rata basis), (ii) purchase, redeem, retire or otherwise acquire for value
any Capital Stock of the Company or any Restricted Subsidiary held by Persons
other than the Company or another Restricted Subsidiary, other than the making
of a Permitted Investment, (iii) purchase, repurchase, redeem, defease or
otherwise acquire or retire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment any Subordinated Indebtedness (other
than the purchase, repurchase or other acquisition of Subordinated Indebtedness
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
acquisition), or (iv) make any Investment (other than a Permitted Investment) in
any Person (any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment described in and not
excluded from clauses (i) through (iv) of this Section 4.04(a) being herein
referred to as a "Restricted Payment"), if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution) declared or made
subsequent to the Closing Date would exceed the sum of, without
duplication:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the
fiscal quarter immediately following the fiscal quarter during which
the Closing Date occurs to the end of the most recent fiscal quarter
for which internal financial statements are available ending prior
to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit);
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(B) the aggregate Qualified Proceeds received by the Company
from the issue or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Closing Date (other than an issuance or
sale to (x) a Subsidiary of the Company or (y) an employee stock
ownership plan or other trust established by the Company or any of
its Subsidiaries for the benefit of its employees to the extent that
the purchase by such plan or trust is financed by Indebtedness of
such plan or trust owed to the Company or any of its Subsidiaries or
Indebtedness Guaranteed by the Company or any of its Subsidiaries);
(C) 100% of the aggregate Qualified Proceeds received by the
Company from the issuance or sale of debt securities of the Company
or Disqualified Stock of the Company that after the Closing Date
have been converted into or exchanged for Capital Stock (other than
Disqualified Stock) of the Company (other than an issuance or sale
to (x) a Subsidiary of the Company or (y) an employee stock
ownership plan or other trust established by the Company or any of
its Subsidiaries for the benefit of its employees to the extent that
the purchase by such plan or trust is financed by Indebtedness of
such plan or trust owed to the Company or any of its Subsidiaries or
Indebtedness Guaranteed by the Company or any of its Subsidiaries),
less the amount of any cash or the Fair Market Value of any property
distributed by the Company or any Restricted Subsidiary upon such
conversion or exchange; provided, however, that no amount will be
included in this clause (C) to the extent it is already included in
Consolidated Net Income;
(D) in the case of any Investment by the Company or any
Restricted Subsidiary (other than any Permitted Investment) made
after the Closing Date, the disposition of such Investment by, or
repayment of such Investment to, the Company or a Restricted
Subsidiary or the receipt by the Company or any Restricted
Subsidiary of any dividends or distributions from such Investment,
an aggregate amount equal to the lesser of (x) the aggregate amount
of such Investment treated as a Restricted Payment pursuant to
clause (iv) above and (y) the aggregate amount in cash received by
the Company or any Restricted Subsidiary upon such disposition,
repayment, dividend or distribution; provided, however, that no
amount will be included in this clause (D) to the extent it is
already included in Consolidated Net Income;
(E) in the event the Company or any Restricted Subsidiary
makes any Investment in a Person that, as a result of or in
connection with such Investment, becomes a Restricted Subsidiary, an
amount equal to the Company's or any Restricted Subsidiary's
existing Investment in such Person that was previously treated as a
Restricted Payment pursuant to clause (iv) above; provided, however,
that such Person is engaged in a Permitted Business; and
(F) the amount equal to the sum of (x) the net reduction in
Investments in Unrestricted Subsidiaries resulting from payments of
dividends, repayments of the principal of loans or advances or other
transfers of assets to the Company or any Restricted Subsidiary from
Unrestricted Subsidiaries and (y) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair
-36-
Market Value of the net assets of an Unrestricted Subsidiary at the
time such Unrestricted Subsidiary is redesignated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary and treated as a
Restricted Payment pursuant to clause (iv) above.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption or other acquisition
or retirement for value of Capital Stock of the Company or any
Restricted Subsidiary made by exchange for, or out of the proceeds
of the substantially concurrent sale of, other Capital Stock of the
Company (other than Disqualified Stock and other than Capital Stock
issued or sold to (x) a Subsidiary of the Company or (y) an employee
stock ownership plan or other trust established by the Company or
any of its Subsidiaries for the benefit of its employees to the
extent that the purchase by such plan or trust is financed by
Indebtedness of such plan or trust owed to the Company or any of its
Subsidiaries or Indebtedness Guaranteed by the Company or any of its
Subsidiaries); provided, however, that (1) such Restricted Payment
shall be excluded from the calculation of the amount of Restricted
Payments and (2) the Net Cash Proceeds from such sale applied in the
manner set forth in this clause (i) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B);
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Indebtedness of
the Company or any Restricted Subsidiary made by exchange for, or
out of the proceeds of the substantially concurrent sale of,
Refinancing Indebtedness that is permitted to be Incurred pursuant
to Section 4.03(b)(vi); provided, however, that such purchase,
repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded from the calculation of the
amount of Restricted Payments;
(iii) the repurchase, redemption or other acquisition or
retirement for value of Disqualified Stock of the Company or any
Restricted Subsidiary made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Disqualified Stock of the
Company or any Restricted Subsidiary that is permitted to be
Incurred pursuant to Section 4.03; provided, however, that such
repurchase, redemption or other acquisition or retirement for value
shall be excluded from the calculation of the amount of Restricted
Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend
would have complied with Section 4.04(a); provided, however, that
such dividend shall be included in the calculation of the amount of
Restricted Payments (without duplication for declaration);
(v) the declaration and payment of any dividend (or the making
of any similar distribution or redemption) to the holders of any
class or series of
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Disqualified Stock of the Company issued or Incurred after the
Closing Date in accordance with Section 4.03; provided that no
Default or Event of Default shall have occurred and be continuing
immediately after making such declaration or payment; and provided
further, that such payment will be excluded from the calculation of
the amount of Restricted Payments.
4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Company shall not, and shall not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company or any of
its Restricted Subsidiaries, (b) make any loans or advances to the Company or
any of its Restricted Subsidiaries or (c) transfer any of its property or assets
to the Company or any of its Restricted Subsidiaries, except:
(i) any encumbrance or restriction pursuant to applicable law,
regulation, order or an agreement in effect at the Closing Date;
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the
date on which such Restricted Subsidiary was acquired by the Company
(other than Indebtedness Incurred as consideration in, in
contemplation of, or to provide all or any portion of the funds or
credit support utilized to consummate the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by the
Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (c) (i) or (c) (ii) of this Section
4.05 or this clause (iii) or contained in any amendment to an
agreement referred to in clause (c)(i) or (c)(ii) of this Section
4.05 or this clause (iii); provided, however, that the encumbrances
and restrictions contained in any agreement or amendment relating to
such Refinancing are no less favorable to the Holders than the
encumbrances and restrictions contained in the agreements relating
to the Indebtedness so Refinanced;
(iv) any encumbrance or restriction (1) that restricts in a
customary manner the subletting, assignment or transfer of any
property or asset that is subject to a lease, license or similar
contract or (2) that is contained in security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such
encumbrance or restriction restricts the transfer of the property
subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets
of such Restricted Subsidiary pending the closing of such sale or
disposition;
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(vi) contracts for the sale of assets containing customary
restrictions with respect to a Subsidiary pursuant to an agreement
that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;
(vii) agreements for the sale of assets containing customary
restrictions with respect to such assets;
(viii) restrictions relating to the common stock of
Unrestricted Subsidiaries or Persons other than Subsidiaries;
(ix) encumbrances or restrictions existing under or by reason
of provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business; and
(x) encumbrances or restrictions existing under or by reason
of restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business.
4.06. Limitation on Sales of Assets and Subsidiary Stock. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, make any
Asset Disposition unless (i) the Company or such Restricted Subsidiary, as the
case may be, receives consideration (including by way of relief from, or by any
other Person assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition and (ii)
at least 80% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash, Temporary Cash Investments or
other Qualified Proceeds (provided that the aggregate Fair Market Value of
Qualified Proceeds (other than cash and Temporary Cash Investments) shall not
exceed $10.0 million since the Closing Date).
Within 365 days after the receipt of any Net Available Cash from
such Asset Disposition, the Company or such Restricted Subsidiary may apply an
amount equal to 100% of the Net Available Cash from such Asset Disposition (w)
to repay or cash collateralize any First-Lien Credit Facility or the Notes
(except that, in the case where the First-Lien Credit Facility consists of the
Credit Agreement, the repayment obligation referred to above in this clause (w)
shall not be construed to require that the commitments available under the
Credit Agreement be permanently reduced); (x) to acquire all or substantially
all of the assets of another Permitted Business; (y) to make a capital
expenditure; or (z) to acquire other long-term assets that are used or useful in
the Permitted Business; provided, however, that in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to clause (w) above,
the Company or such Restricted Subsidiary shall retire such Indebtedness and
shall cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased.
For the purposes of clause (a)(ii) of this Section 4.06 only, the
following are deemed to be cash: (A) the assumption of any liabilities (as shown
on the Company's or a
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Restricted Subsidiary's most recent balance sheet) of the Company or any such
Restricted Subsidiary (other than contingent liabilities, liabilities that are
by their terms subordinated to the Notes or any Note Guarantee, or liabilities
to the Company or a Subsidiary of the Company) pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability in connection with such Asset Disposition and (B) any securities or
other obligations received by the Company or any Restricted Subsidiary from the
transferee that are converted within 90 days of receipt by the Company or such
Restricted Subsidiary into cash.
Pending the final application of any Net Available Cash, the Company
or such Restricted Subsidiary may temporarily reduce revolving credit borrowings
or otherwise invest the Net Available Cash in any manner that is not prohibited
by this Indenture.
(b) Any Net Available Cash from Asset Dispositions that is not
applied or invested as provided in Section 4.06(a) shall constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company shall make an Asset Disposition offer (the "Offer") to all Holders
of Notes and all holders of other secured Indebtedness that is pari passu in
right of payment (including as to security therefor) with the Notes containing
provisions similar to those set forth in Section 4.06(c) with respect to offers
to purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of Notes and such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds. The offer price in any Offer shall
be equal to 101% of principal amount plus accrued and unpaid interest to the
date of purchase, and shall be payable in cash. If any Excess Proceeds remain
after consummation of an Offer, the Company may use those Excess Proceeds for
any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and other such pari passu Indebtedness tendered into
such Offer exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes and such other pari passu Indebtedness to be purchased on a pro rata
basis; provided, however, that the Company shall not be obligated to purchase
Notes in denominations other than integral multiples of $1,000 principal amount.
Upon completion of each Offer, the amount of Excess Proceeds shall be reset at
zero.
(c) (i) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall be obligated
to deliver to the Trustee and send, by first-class mail to each
Holder, a written notice stating that the Holder may elect to have
his Notes purchased by the Company either in whole or in part
(subject to prorating as hereinafter described in the event the
Offer is oversubscribed) in integral multiples of $1,000 of
principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days
after the date of such notice (the "Purchase Date") and shall
contain such information concerning the business of the Company
which the Company in good faith believes will enable such Holders to
make an informed decision (which at a minimum shall include (1) the
most recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current
Report on Form 8-K of the Company filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Dispositions
otherwise described in the offering materials (or corresponding
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successor reports), (2) a description of material developments in
the Company's business subsequent to the date of the latest of such
reports, and (3) if material, appropriate pro forma financial
information) and all instructions and materials necessary to tender
Notes pursuant to the Offer, together with the address referred to
in clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company
shall deliver to the Trustee an Officers' Certificate as to (1) the
amount of the Offer (the "Offer Amount"), (2) the allocation of the
Net Available Cash from the Asset Dispositions pursuant to which
such Offer is being made and (3) the compliance of such allocation
with the provisions of Section 4.06(a) and (b). Not later than one
Business Day before the Purchase Date, the Company shall also
irrevocably deposit with the Trustee or with a paying agent (or, if
the Company or a domestically organized Wholly Owned Restricted
Subsidiary is acting as paying agent, segregate and hold in trust)
an amount equal to the Offer Amount with written instructions for
investment in Temporary Cash Investments and to be held for payment
in accordance with the provisions of this Section 4.06. Upon the
expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for
cancellation the Notes or portions thereof that have been properly
tendered to and are to be accepted by the Company. The Trustee (or
the Paying Agent, if not the Trustee) shall, on the date of
purchase, mail or deliver payment to each tendering Holder in the
amount of the purchase price. In the event that the Offer Amount
delivered by the Company to the Trustee is greater than the purchase
price of the Notes (and such other pari passu Indebtedness)
tendered, the Trustee shall deliver the excess to the Company
promptly after the expiration of the Offer Period for application in
accordance with this Section 4.06.
(iii) Holders electing to have a Note purchased shall be
required to surrender the Notes, with an appropriate form duly
completed, to the Company at the address specified in the notice at
least three Business Days prior to the Purchase Date. Holders shall
be entitled to withdraw their election if the Trustee or the Company
receives not later than one Business Day prior to the Purchase Date,
a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note or Notes
which were delivered by the Holder for purchase and a statement that
such Holder is withdrawing his election to have such Note or Notes
purchased. If at the expiration of the Offer Period the aggregate
principal amount of Notes and any such other pari passu Indebtedness
included in the Offer surrendered by holders thereof exceeds the
Offer Amount, the Company shall select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes and such other pari passu Indebtedness in denominations of
$1,000, or integral multiples thereof, shall be purchased). Holders
whose Notes are purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes
surrendered
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(iv) At the time the Company delivers Notes to the Trustee
which are to be accepted for purchase, the Company shall also
deliver an Officers' Certificate stating that such Notes are to be
accepted by the Company pursuant to and in accordance with the terms
of this Section. A Note shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent,
mails or delivers payment therefor to the surrendering Holder.
(v) The Company shall comply in all material respects with the
requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws
and regulations are applicable in connection with each repurchase of
Notes pursuant to an Offer. To the extent that the provisions of any
securities laws or regulations conflict with the Asset Disposition
provisions of this Indenture, the Company shall comply in all
material respects with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations
under the Asset Disposition provisions of this Indenture by virtue
of such conflict.
4.07. Limitation on Transactions with Affiliates. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction (including, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (an "Affiliate Transaction") unless such Affiliate
Transaction is on terms (i) that are no less favorable (other than in immaterial
respects) to the Company or such Restricted Subsidiary, as the case may be, than
those that could be obtained at the time of such transaction in comparable
arm's-length dealings with a Person who is not such an Affiliate, (ii) that, in
the event that such Affiliate Transaction involves an aggregate amount in excess
of $1.0 million, (1) are set forth in writing and (2) have been approved by a
majority of the members of the Board of Directors having no personal stake in
such Affiliate Transaction and (iii) that, in the event that such Affiliate
Transaction involves an amount in excess of $2.0 million, have been determined
by a nationally recognized appraisal or investment banking firm to be fair, from
a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors, (iii) the
grant of stock options or similar rights to officers, employees, consultants and
directors of the Company pursuant to plans approved by the Board of Directors
and the payment of amounts or the issuance of securities pursuant thereto, (iv)
the payment of reasonable fees, compensation or employee benefit arrangements to
and any indemnity provided for the benefit of directors, officers, consultants
or employees of the Company or any Restricted Subsidiary in the ordinary course
of business, (v) any transaction between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries, or (vi) transactions with customers,
suppliers, contractors, joint venture partners or purchasers or sellers of goods
or services, in each case which are in the ordinary course of business
(including pursuant to joint venture agreements) and otherwise in compliance
with the terms of this Indenture, and which are fair to the Company or its
Restricted Subsidiaries, as applicable, in the reasonable determination of the
Board of Directors or the senior management of the Company or its Restricted
Subsidiaries, as applicable
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or are on terms at least as favorable as might reasonably have been obtained at
such time from an unaffiliated party.
4.08. Repurchase of Notes at the Option of the Holder Upon a Change
of Control. (a) Upon a Change of Control, each Holder shall have the right to
require that the Company repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest
thereon to the date of repurchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date) in accordance with the terms contemplated in Section 4.08(b);
provided, however, that notwithstanding the occurrence of a Change of Control,
the Company shall not be obligated to purchase the Notes pursuant to this
Section 4.08 in the event that it has exercised its right to redeem all the
Notes under paragraph 5 of the Notes. In the event that at the time of such
Change of Control the terms of the First-Lien Credit Facilities restrict or
prohibit the repurchase of Notes pursuant to this Section 4.08, then prior to
the mailing of the notice to Holders provided for in Section 4.08(b) below but
in any event within 30 days following any Change of Control, the Company shall
(i) repay in full all First-Lien Credit Facilities or (ii) obtain the requisite
consent under the agreements governing the First-Lien Credit Facilities to
permit the repurchase of the Notes as provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Company
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase all or a portion
(equal to $1,000 or an integral multiple thereof) of such Holder's
Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest to the date of
repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant
interest payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30
days (or such shorter time period as may be permitted under
applicable laws, rules and regulations) nor later than 60 days from
the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent
with this Section 4.08, that a Holder must follow in order to have
its Notes purchased.
(c) Holders electing to have a Note purchased shall be required to
surrender such Note, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered for
purchase by the Holder
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and a statement that such Holder is withdrawing his election to have such Note
purchased. Holders whose Notes are purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered.
(d) On the purchase date, all Notes purchased by the Company under
this Section 4.08 shall be delivered to the Trustee for cancellation, and the
Company shall pay the purchase price plus accrued and unpaid interest to the
Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section 4.08,
the Company will not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in Section
4.08(b) applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
(f) In connection with any Change of Control Offer, the Company
shall deliver to the Trustee an Officers' Certificate stating that all
conditions precedent contained herein to the right of the Company to make such
offer have been complied with.
(g) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Indenture relating to Change of Control Offers,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations under this Section by
virtue thereof.
4.09. Compliance Certificate. The Company and each Guarantor shall
deliver to the Trustee within 90 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company or such Guarantor they
would normally have knowledge of any Default and whether or not the signers know
of any Default that occurred during such period. If they do, the certificate
shall describe the Default, its status and what action the Company or the
Guarantor, as the case may be, is taking or propose to take with respect
thereto. The Company and each Guarantor also shall comply with Section 314(a)(4)
of the TIA.
4.10. Sale/Leaseback Transactions. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback
Transaction; provided that the Company or any Restricted Subsidiary may enter
into a Sale/Leaseback transaction if: (a) the Company or that Restricted
Subsidiary, as applicable, could have Incurred Indebtedness in an amount equal
to the Attributable Debt relating to such Sale/Leaseback Transaction under
Section 4.03 hereof; (b) the gross cash proceeds of the Sale/Leaseback
Transaction are at least equal to the fair market value (and, if gross cash
proceeds from such Sale/Leaseback Transaction are in excess of [$1.0] million,
the Company delivers a Board Resolution to such effect to the Trustee), of the
property that is the subject of that Sale/Leaseback Transaction; and (c) the
transfer of assets in that Sale/Leaseback Transaction is permitted by, and the
Company applies the proceeds of such transaction in compliance with, Section
4.06.
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4.11. Additional Note Guarantees and Liens. If (x) any Subsidiary
shall, after the date hereof, become a guarantor of any First-Lien Credit
Facility or (y) any Subsidiary shall, after the date hereof, become a Restricted
Subsidiary, then the Company shall, at that time, cause such Subsidiary to (a)
execute a Guarantee of the obligations of the Company under the Notes
substantially in the form set forth in Exhibit B hereto, (b) concurrently grant
a second-priority Lien, ranking only after the first Liens on the Collateral
securing the First-Lien Credit Facilities, upon its assets and property as
security for the Notes, the Note Guarantees and any other Obligations and
execute any and all further Security Documents, financing statements, agreements
and instruments, upon substantially the same terms as the Security Documents and
in a form reasonably satisfactory to the Trustee, that grants the Collateral
Agent a second-priority Lien upon such assets and property for the benefit of
the Holders and take all such actions (including the filing and recording of
financing statements, fixture filings, Mortgages and other documents) that may
be required under any applicable law, or which the Trustee or Collateral Agent
may reasonably request, to create such second-priority Lien, all at the expense
of the Company, including all reasonable fees and expenses of counsel incurred
by the Trustee in connection therewith and (c) deliver to the Trustee an Opinion
of Counsel, reasonably satisfactory to the Trustee, that such Guarantee and any
such Security Documents, as the case may be, are valid, binding and enforceable
obligations of such Subsidiary, subject to customary exceptions for bankruptcy,
fraudulent conveyance and equitable principles.
From and after the date of this Indenture, if the Company or any
Guarantor creates any initial or additional Lien upon any of its assets and
property to secure any First-Lien Credit Facility, it shall concurrently grant a
second-priority Lien upon such assets and property as security for the Notes,
the Note Guarantees and any other Obligations and execute any and all further
Security Documents, financing statements, agreements and instruments, upon
substantially the same terms as the Security Documents and in a form reasonably
satisfactory to the Trustee, that grant the Collateral Agent a second-priority
Lien upon such assets and property for the benefit of the Holders and take all
such actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents) that may be required under any
applicable law, or which the Trustee or Collateral Agent may reasonably request,
to create such second-priority Lien, all at the expense of the Company,
including all reasonable fees and expenses of counsel incurred by the Trustee in
connection therewith and deliver to the Trustee an Opinion of Counsel,
reasonably satisfactory to the Trustee, that such Security Documents are valid,
binding and enforceable obligations of the Company or such Guarantor, as the
case may be, subject to customary exceptions for bankruptcy, fraudulent
conveyance and equitable principles.
In addition, the Company shall, with respect to each parcel of real
property in the United States owned or leased by the Company or any Guarantor
that secures any First Lien Credit Facility, deliver to the Collateral Agent,
for the benefit of or addressed to the Trustee or the Collateral Agent, as
applicable, the following:
(a) a fully executed, acknowledged, and recorded Mortgage that
secures the Notes, the Note Guarantees and any other Obligations on a
second-priority basis;
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(b) an opinion of local counsel reasonably acceptable to the Trustee
to the effect that such release is authorized or permitted by this Indenture and
Security Documents and that all conditions precedent, if any, to such release
have been satisfied;
(c) a fully-paid title insurance policy with no exceptions other
than (i) Permitted Liens, and (ii) the Lien on such property securing First-Lien
Credit Facilities; and
(d) the most recent survey of each property together with either (i)
an updated survey certification from the applicable surveyor stating that, based
on a visual inspection of the property and the knowledge of the surveyor, there
has been no change in the facts depicted in the survey or (ii) an Officers'
Certificate from the Company certifying that there has been no change in the
facts depicted in the survey.
The Company shall provide each of the foregoing described in clauses
(a) through (e) above at their own expense and shall pay all reasonable fees and
expenses of counsel incurred by the Trustee in connection with each of the
foregoing.
Any such Lien (including any Mortgage) granted in favor of the
Holders shall be subject to the terms of the Intercreditor Agreement or another
customary collateral sharing or intercreditor agreement setting forth the
respective rights of the Holders and the holders of such other obligations.
Each Note Guarantee will be limited in amount to an amount not to
exceed the maximum amount that can be guaranteed by the applicable Guarantor
without rendering the Notes Guarantee, as it relates to such Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
4.12. Limitation on Lines of Business. The Company shall not, and
shall not permit any Restricted Subsidiary to, engage in any business, other
than a Permitted Business.
4.13. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Company shall not sell or otherwise dispose of any
shares of Capital Stock of a Restricted Subsidiary, and shall not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell or otherwise
dispose of any shares of its Capital Stock except: (a) to the Company or another
Restricted Subsidiary; (b) if, immediately after giving effect to such issuance,
sale or other disposition, neither the Company nor any of its Restricted
Subsidiaries own any Capital Stock of such Restricted Subsidiary; (c) 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 thereto would have been permitted
to be made under Section 4.04 if made on the date of such issuance, sale or
other disposition; (d) directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary; or (e) in the case of a Restricted Subsidiary other than a Wholly
Owned Restricted Subsidiary, the issuance by that Restricted Subsidiary of
Capital Stock on a pro rata basis to the Company and its Restricted
Subsidiaries, on the one hand, and minority shareholders of the Restricted
Subsidiary, on the other hand (or on less than a
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pro rata basis to any minority shareholder if the minority holder does not
acquire its pro rata amount), so long as the Company or another Restricted
Subsidiary owns and controls at least the same percentage of the Voting Stock
of, and economic interest in, such Restricted Subsidiary as prior to such
issuance. The cash proceeds of any sale of Capital Stock permitted under clauses
(b) and (c) shall be treated as Net Available Cash from an Asset Disposition and
shall be applied in accordance with Section 4.06.
4.14. Limitation on Liens. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien of any kind on any asset now owned or
hereafter acquired by the Company or its Restricted Subsidiaries, except
Permitted Liens.
4.15. Further Instruments and Acts. Upon request of the Trustee, the
Company shall execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
ARTICLE V
SUCCESSOR COMPANY
5.01. When Company May Merge or Transfer Assets. (a) The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the
Company) shall expressly assume, by a supplemental indenture hereto,
executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all the obligations of the Company
under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the
Successor Company or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default
or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur at least $1.00 of
additional Indebtedness pursuant to Section 4.03(a); and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture.
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The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture.
(b) The Company shall not permit any Guarantor to consolidate with
or merge with or into, or convey, transfer or lease all or substantially all of
its assets to any Person unless: (i) in the case of any Guarantor that is a
Domestic Subsidiary, the resulting, surviving or transferee Person will be a
corporation, partnership or limited liability company organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and such Person (if not such Guarantor) shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of such Guarantor under
its Note Guarantee; (ii) immediately after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person as a result of such transaction as having been
Incurred by such Person at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing; and (iii) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture; provided, however, that the
foregoing shall not apply to any such consolidation or merger with or into, or
conveyance, transfer or lease to, any Person if the resulting, surviving or
transferee Person will not be a Subsidiary of the Company and the other terms of
this Indenture, including Section 4.06, are complied with.
(c) Notwithstanding the foregoing, (i) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company; (ii) nothing herein shall limit any conveyance, transfer
or lease of assets between or among any of the Company and the Guarantors; and
(iii) the foregoing clause (a)(iii) of this Section 5.01 shall not prohibit a
merger between the Company and a Person that owns all of the Capital Stock of
the Company created solely for the purpose of holding the Capital Stock of the
Company; provided, however, that the other terms of Section 5.01(a) are complied
with.
ARTICLE VI
EVENTS OF DEFAULTS AND REMEDIES
6.01. Events of Default. An "Event of Default" occurs if:
(a) the Company or any Guarantor defaults in any payment of interest
on any Note, and such default continues for a period of 30 days;
(b) the Company or any Guarantor (i) defaults in the payment of the
principal of or premium, if any, on any Note when the same becomes due and
payable at its Stated Maturity, upon required redemption or repurchase, upon
declaration or otherwise, or (ii) fails to redeem or purchase Notes when
required pursuant to this Indenture or the Notes;
(c) the Company or any Guarantor fails to comply with Section 5.01;
(d) the Company or any Guarantor fails to comply with any of its
agreements in the Notes or this Indenture, any Note Guarantee or any Security
Document (other than those
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referred to in (a), (b) or (c) above) and such failure continues for 30 days
after the notice specified below;
(e) Indebtedness of the Company or any Restricted Subsidiary is not
paid within any applicable grace period after final maturity or the acceleration
by the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $5.0 million or its foreign currency
equivalent at the time and such failure continues for 10 days after the notice
specified below;
(f) the Company or any Restricted Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it
in an involuntary case;
(iii) consents to the appointment of a Receiver of it or for
any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) or takes any comparable action under any foreign laws
relating to insolvency;
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any Restricted
Subsidiary in an involuntary case;
(ii) appoints a Receiver of the Company or any Restricted
Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Company or
any Restricted Subsidiary;
or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days;
(h) with respect to any judgment or decree for the payment of money
in excess of $10.0 million or its foreign currency equivalent against the
Company or any Restricted Subsidiary (i) an enforcement proceeding is commenced
thereon by any creditor if such judgment or decree is final and nonappealable
and the Company or such Restricted Subsidiary, as applicable, fails to stay such
proceeding within 10 days thereafter or (ii) the Company or such Restricted
Subsidiary, as applicable, fails to pay such judgment or decree, which judgment
or decree has remained outstanding for a period of 60 days following the entry
of such judgment or decree without being paid, discharged, waived or stayed; or
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(i) (i) except as permitted by this Indenture, any Note Guarantee or
any Security Document or any security interest granted thereby shall be held in
any judicial proceeding to be unenforceable or invalid, or shall cease for any
reason to be in full force and effect and such default continues for 10 days
after written notice, or (ii) the Company or any Guarantor shall deny or
disaffirm its obligations under any Note Guarantee or Security Document.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Receiver"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (d), (e) or (i) above is not an Event of
Default until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Notes notify the Company and the Trustee of
the Default and the Company or the relevant Guarantor, as applicable, do not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice or the lapse of time would become an
Event of Default under clauses (d), (e) or (i), its status and what action the
Company is taking or propose to take with respect thereto.
6.02. Acceleration. (a) If an Event of Default (other than an Event
of Default specified in Section 6.01(f) or (g) with respect to the Company)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes, by notice to the Company, may declare
the principal of, premium, if any, and accrued but unpaid interest on all the
Notes to be due and payable. Upon such a declaration, such principal, premium
and interest shall be due and payable immediately. If an Event of Default
specified in Section 6.01(f) or (g) with respect to the Company occurs, the
principal of and interest on all the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. The Holders of a majority in principal amount of the
Notes by notice to the Trustee may rescind an acceleration and its consequences
if (i) the rescission would not conflict with any judgment or decree, (ii) if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration and
(iii) if, solely in the case of an Event of Default arising from nonpayment of
principal or interest on the Notes, the Company has paid to the Trustee all
amounts due and owing to the Trustee under Section 7.07. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
(b) In the event of a declaration of acceleration of the Notes
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness
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described in Section 6.01(e), the declaration of acceleration of the Notes shall
be automatically annulled if the holders of any such Indebtedness have rescinded
the declaration of acceleration in respect of such Indebtedness within 30 days
of the date of such acceleration and if (i) the annulment of the acceleration of
the Notes would not conflict with any judgment or decree of a court of competent
jurisdiction, (ii) all existing Events of Default, except nonpayment of
principal or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived and (iii) solely in the
case of an Event of Default arising from nonpayment of principal or interest on
the Notes, the Company has paid to the Trustee all amounts due and owing to the
Trustee under Section 7.07 .
6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
6.04. Waiver of Past Defaults. Subject to Section 6.02, the Holders
of a majority in principal amount of the Notes by notice to the Trustee may
waive on behalf of the Holders of all of the Notes an existing Default and its
consequences except (a) a Default in the payment of the principal of, premium,
if any, or interest on a Note, (b) a Default arising from the failure to redeem
or purchase any Note when required pursuant to the terms of this Indenture or
(c) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
6.05. Control by Majority. The Holders of a majority in principal
amount of the Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
6.06. Limitation on Suits. (a) Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
may pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
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(ii) the Holders of at least 25% in principal amount of the
Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the Notes
do not give the Trustee a direction inconsistent with the request
during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of, premium, if any, and interest on the Notes held by such Holder, on
or after the respective due dates expressed or provided for in the Notes, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
6.08. Collection Suit by Trustee. If an Event of Default specified
in Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Notes for the whole amount then due and owing
(together with interest on overdue principal, premium, if any, and (to the
extent lawful) on any unpaid interest at the rate provided for in the Notes) and
the amounts provided for in Section 7.07.
6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Holders allowed in any
judicial proceedings relative to the Company, any Subsidiary or Guarantor, their
creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Receiver in any
such judicial proceeding is hereby authorized by each Holder to make payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.07.
6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
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SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and amount to be paid.
6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Notes.
6.12. Waiver of Stay or Extension Laws. Neither the Company nor any
Guarantor (to the extent it may lawfully do so) shall at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company and each Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
TRUSTEE
7.01. Duties of Trustee. (a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee
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and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(iv) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
7.02. Rights of Trustee. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to the Indenture Documents
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Notes at
the time outstanding, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(g) The Trustee shall not be charged with knowledge of any default
or Event of Default with respect to the Notes, unless either (1) a Trust Officer
shall have actual knowledge of such default or Event of Default or (2) a written
notice of such default or Event of Default shall have been given to the Trustee
by the Company or by any Holder of the Notes.
(h) The permissive rights of the Trustee enumerated herein shall not
be construed as duties.
(i) The Trustee shall at not time have any responsibility or
liability for or with respect to the legality, validity or enforceability of any
Collateral or any arrangement or agreement between the Company and any Person
with respect thereto, or the perfection or priority of any security interest
created in the Collateral or the maintenance of any such perfection or priority,
or for or with respect to the sufficiency of the Collateral following an Event
of Default.
7.03. Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or their respective Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar or co-paying
agent may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
7.04. Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture,
any Note Guarantee, the Notes or any Security Document, it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company or any Guarantor in this
Indenture or in any document issued in connection with the sale of the Notes or
in the Notes other than the Trustee's certificate of authentication. The Trustee
shall not be charged with knowledge of any Default or Event of Default under
Sections 6.01(c), (d), (e), (h)
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or (i) unless either (a) a Trust Officer shall have actual knowledge thereof or
(b) the Trustee shall have received notice thereof in accordance with Section
12.02 hereof from the Company, any Guarantor or any Holder.
7.05. Notice of Defaults. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Holder notice of
the Default within the earlier of 90 days after it occurs or 30 days after it is
known to a trust officer. Except in the case of a Default in payment of
principal of, premium, if any, or interest on any Note (including payments
pursuant to the redemption provisions of such Note, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
7.06. Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with May 15, 2004, the Trustee shall mail to each
Holder a brief report dated as of such May 15 that complies with Section 313(a)
of the TIA if and to the extent required thereby. The Trustee shall also comply
with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each stock exchange (if any) on which the Notes
are listed. The Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services hereunder and
under each other Indenture Document as the Company and the Trustee shall from
time to time agree in writing. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. Each of the Company and each Guarantor,
jointly and severally shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys' fees) incurred by or in
connection with the administration of this trust and the performance of its
duties hereunder. The Trustee shall notify the Company of any claim for which it
may seek indemnity promptly upon obtaining actual knowledge thereof; provided,
however, that any failure so to notify the Company shall not relieve the Company
or any Guarantor of its indemnity obligations hereunder. The Company shall
defend the claim and the Trustee shall provide reasonable cooperation at the
Company's expense in the defense. The Trustee may have separate counsel and the
Company and the Guarantors, as applicable, shall pay the reasonable fees and
expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
its own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of, premium, if any, and interest on particular Notes.
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The Company's payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(f) or (g) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
7.08. Replacement of Trustee. (a) The Trustee may resign at any time
by so notifying the Company. The Holders of a majority in principal amount of
the Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in TIA Section 310(b), any Holder
who has been a bona fide holder of a Note for at least six months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
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7.09. Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
7.10. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b), subject to its right to apply for a stay of its duty to resign
under the penultimate paragraph of TIA Section 310(b); provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
7.11. Preferential Collection of Claims Against the Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
8.01. Discharge of Liability on Notes; Defeasance. (a) Subject to
Section 8.01(c), when (i) all outstanding Notes (other than Notes replaced or
paid pursuant to Section 2.08) have been canceled or delivered to the Trustee
for cancellation or (ii) all outstanding Notes not previously delivered for
cancellation have become due and payable, whether at maturity or as a result of
the mailing of a notice of redemption pursuant to Article III hereof, and the
Company irrevocably deposits with the Trustee funds in an amount sufficient or
U.S. Government Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, in the written opinion of a
nationally recognized firm of independent public accountants delivered to the
Trustee (which delivery shall only be required if U.S. Government Obligations
have been so deposited) to pay the principal of, premium, if any, and interest
on the outstanding Notes when due at maturity or upon redemption of, including
interest thereon to maturity or such redemption date (other than Notes replaced
or paid pursuant to Section 2.08) and if in either case the Company pays all
other sums payable hereunder by the Company, then
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this Indenture shall, subject to Section 8.01(c), cease to be of further effect.
The Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (i) all of its obligations under the Notes and this Indenture
("legal defeasance option") and (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.10, 4.11, 4.12, 4.13 or 4.14 and the operation
of Section 5.01(a)(iii), 6.01(d), 6.01(e), 6.01(f) (with respect to Restricted
Subsidiaries only), 6.01(g) (with respect to Restricted Subsidiaries only), and
6.01(h) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option. In the event that the Company terminates all of its obligations under
the Notes and this Indenture by exercising its legal defeasance option, the
obligations under the Note Guarantees shall each be terminated simultaneously
with the termination of such obligations.
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.01(d),
6.01(e), 6.01(f) (with respect to Restricted Subsidiaries only), 6.01(g) (with
respect to Restricted Subsidiaries only) or 6.01(h) or because of the failure of
the Company to comply with Section 5.01(a)(iii).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and 8.01(b),
the Company's obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07,
7.08 and in this Article VIII shall survive until the Notes have been paid in
full. Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05
shall survive.
8.02. Conditions to Defeasance. (a) The Company may exercise their
legal defeasance option or their covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a
combination thereof sufficient, to pay the principal, premium (if
any) and interest on the Notes when due at maturity or redemption,
as the case may be, including interest thereon to maturity or such
redemption date;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due
and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be
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sufficient to pay principal, premium, if any, and interest when due
on all the Notes to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(f) or (g) with
respect to the Company occurs which is continuing at the end of the
period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (1) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (2) since the date of
this Indenture there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(viii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Notes as
contemplated by this Article VIII have been complied with.
(b) Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
8.03. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
VIII. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of, premium, if any, and interest on the Notes.
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8.04. Repayment to the Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any money or U.S.
Government Obligations held by either of them as provided in this Article VIII
which, in the written opinion of a nationally recognized firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if U.S. Government Obligations have been so deposited), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent discharge or defeasance in accordance with this Article VIII.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal, premium or interest that remains unclaimed
for two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors and the Trustee and the Paying Agent
shall have no further liability with respect to such monies.
8.05. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
8.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
VIII by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Notes and the each Guarantor's obligations under its Note Guarantee shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article VIII; provided, however, that if the Company has made any payment of
interest on or principal of or premium, if any, on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
9.01. Without Consent of Holders. (a) The Company, the Guarantors
and the Trustee may amend or supplement this Indenture, the Notes, the Note
Guarantees or the Security Documents without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the
Code;
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(iv) to add additional Note Guarantees with respect to the
Notes;
(v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(vi) to make any change that does not adversely affect the
rights of any Holder, subject to the provisions of this Indenture;
(vii) to comply with any requirement of the Commission in
connection with qualifying, or maintaining the qualification of,
this Indenture under the TIA;
(viii) if necessary, in connection with any addition or
release of Collateral permitted under the terms of this Indenture or
the Security Documents; or
(ix) prior to the Discharge of First Lien Obligations, to give
effect to any amendment, waiver or consent in respect of any
Security Document that does not materially affect the rights of the
Holders.
The Company shall also be entitled to releases of the Collateral or
the Note Guarantees as described in Sections 10.03 and 11.03 hereof.
(b) After an amendment under this Section becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
9.02. With Consent of Holders. (a) The Company, the Guarantors and
the Trustee may amend this Indenture, the Notes, the Note Guarantees or the
Security Documents without notice to any Holder but with the written consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Notes). However, without the consent of each Holder affected,
an amendment may not:
(i) reduce the amount of Notes whose Holders must consent to
an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Note;
(iii) reduce the principal of or extend the Stated Maturity of
any Note;
(iv) reduce the premium payable upon the redemption of any
Note or change the time at which any Note may be redeemed in
accordance with Article III;
(v) make any Note payable in money other than that stated in
the Notes;
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(vi) impair the right of any Holder to receive payment of principal
of, premium, if any, and interest on, such Holder's Notes on or after the
due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes;
(vii) make any change in Section 6.04 or 6.07 or the second sentence
of this Section 9.02; or
(viii) modify the Note Guarantees in any manner adverse to the
Holders.
The consent of the Holders under this Section 9.02 shall not be necessary
to approve the particular form of any proposed amendment. It shall be sufficient
if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 9.02.
9.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Notes shall comply with the TIA as then in effect.
9.04. Revocation and Effect of Consents and Waivers. (a) A consent to an
amendment or a waiver by a Holder of a Note shall bind the Holder and every
subsequent Holder of that Note or portion of the Notes that evidences the same
debt as the consenting Holder's Note, even if notation of the consent or waiver
is not made on the Notes. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Note or portion of the Notes if
the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers' Certificate from the Company certifying that the
requisite number of consents have been received. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of the requisite
number of consents, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and any indenture supplemental hereto containing such
amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Company and the Trustee.
(a) The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
9.05. Notation on or Exchange of Notes. If an amendment changes the terms
of a Note, the Trustee may require the Holder of any Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Notes regarding
the changed terms and return it to the
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Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Notes shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms. Failure to make the appropriate notation
or to issue a new Note shall not affect the validity of such amendment.
9.06. Trustee to Sign Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article IX if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may but need not sign it. In signing such amendment the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to
receive (in addition to the documents required by Section 12.04), and (subject
to Section 7.01) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture and that such amendment is the legal, valid and
binding obligation of the Company and the Guarantors enforceable against them in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.03).
9.07. Payment for Consent. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid to all Holders that so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.
ARTICLE X
COLLATERAL AND SECURITY
10.01. Security Documents. The due and punctual payment of the principal
of, premium, if any, and interest on the Notes when and as the same shall be due
and payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of,
premium, if any, and interest on the Notes and performance of all other
Obligations of the Company and the Guarantors to the Holders or the Trustee
under this Indenture and the Notes, according to the terms hereunder or
thereunder, are secured as provided in the Security Documents which define the
terms of the Liens that secure the Obligations and provide that the Liens
granted thereunder secure the Obligations on a second-priority basis (or, solely
in the case of the Mortgage granted with respect to the property secured by the
Tampa Mortgage, on a third-priority basis), ranking only after the first Liens
on the Collateral securing the First-Lien Credit Facilities. Each Holder, by its
acceptance of a Note, consents and agrees to all of the terms of the Security
Documents (including the provisions providing for the exercise of remedies and
release of Collateral) as the same may be in effect or may be amended from time
to time in accordance with their terms, and authorizes and directs the Trustee
to enter into the Security Documents and to perform its obligations and exercise
its rights thereunder in accordance therewith. The Company shall deliver to the
Trustee (if it is not itself then the Collateral Agent) copies of all documents
delivered to the Collateral Agent pursuant to the Security Documents, and will
do or cause to be done all such acts and things as may be required by the next
sentence of this Section 10.01, to assure and confirm to the Trustee the Liens
upon the Collateral contemplated hereby, by the Security Documents or any part
thereof,
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as from time to time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Obligations secured hereby,
according to the intent and purposes herein expressed. The Company shall take,
and shall cause their Restricted Subsidiaries to take, any and all actions
reasonably required to cause the Security Documents to create and maintain, as
security for the Obligations of the Company and the Guarantors hereunder, after
the Discharge of First Lien Obligations, a valid and enforceable perfected
first-priority Lien on all the Collateral, in favor of the Collateral Agent for
the ratable benefit of the Holders and the Trustee, and if the Discharge of
First Lien Obligations has not occurred, a valid and enforceable perfected
second-priority Lien on all the Collateral (or, solely in the case of the
Mortgage granted with respect to the property secured by the Tampa Mortgage, on
a third-priority basis), in favor of the Collateral Agent for the ratable
benefit of the Holders and the Trustee, ranking only after the first Liens on
the Collateral securing the First-Lien Credit Facilities. The Trustee and the
Company hereby acknowledge and agree that the Collateral Agent holds the
Collateral for the ratable benefit of the Holders and the Trustee pursuant to
the terms of the Security Documents.
10.02. Recording and Opinions. (a) The Company will furnish to the Trustee
on May 15 in each year beginning with May 15, 2004, an Opinion of Counsel, which
may be rendered by internal counsel to the Company, dated as of such date,
either:
(i) (A) stating that, in the opinion of such counsel, action has
been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of all supplemental indentures,
financing statements, continuation statements or other instruments of
further assurance as is necessary to maintain and perfect the Lien of the
Security Documents and reciting with respect to the Liens on the
Collateral the details of such action or referring to prior Opinions of
Counsel in which such details are given, and (B) stating that, in the
opinion of such counsel, based on relevant laws as in effect on the date
of such Opinion of Counsel, all financing statements and continuation
statements have been executed and filed that are necessary as of such date
and during the succeeding 12 months fully to preserve, perfect and
protect, to the extent such protection and preservation are possible by
filing, the rights of the Holders and the Trustee hereunder and the rights
of the Holders, the Trustee and the Collateral Agent under the Security
Documents with respect to the Liens on the Collateral; or
(ii) stating that, in the opinion of such counsel, no such action is
necessary to maintain and perfect such Lien and assignment.
(b) The Company will otherwise comply with the provisions of TIA Section
314(b).
10.03. Release of Collateral. (a) Subject to subsections (b), (c) and (d)
of this Section 10.03, Collateral may be released from the Lien and security
interest created by the Security Documents at any time or from time to time in
accordance with the provisions of the Security Documents or as provided hereby.
Whether prior to or after the Discharge of First Lien Obligations, upon the
request of the Company pursuant to an Officers' Certificate certifying that all
conditions precedent hereunder have been met and without the consent of any
Holder, the
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Company and the Guarantors will be entitled to releases of assets included in
the Collateral from the Liens securing the Notes under any one or more of the
following circumstances:
(i) if such asset is sold, transferred, leased or otherwise disposed
of in a transaction that is permitted or not prohibited by (a) the "asset
sale" covenant of the Credit Agreement and (b) Section 4.06;
(ii) to enable the Company or any Guarantor to consummate any sale,
lease, conveyance or other disposition of any assets or rights permitted
or not prohibited under Section 4.06;
(iii) in respect of assets to the extent they are subject to a
Permitted Lien;
(iv) if all of the stock of any Subsidiary of the Company that is
pledged to the Collateral Agent is released or if any Subsidiary that is a
Note Guarantor is released from its Note Guarantee (in each case, in
accordance with the terms of this Indenture and the Security Documents),
such Subsidiary's assets will also be released; or
(v) pursuant to an amendment, waiver or supplement in accordance
with Article IX hereof.
Upon receipt of such Officers' Certificate, the Trustee shall, if at such
time it is the Collateral Agent, or otherwise shall direct the Collateral Agent,
to execute, deliver or acknowledge any necessary or proper instruments of
termination, satisfaction or release to evidence the release of any Collateral
permitted to be released pursuant to this Indenture and the Security Documents.
(b) No Collateral may be released from the Lien and security interest
created by the Security Documents pursuant to the provisions of the Security
Documents unless the Officers' Certificate required by this Section 10.03 has
been delivered to the Collateral Agent.
(c) At any time when a Default or Event of Default has occurred and is
continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of acceleration
to the Collateral Agent, no release of Collateral pursuant to the provisions of
the Security Documents will be effective as against the Holders.
(d) The release of any Collateral from the terms of this Indenture and the
Security Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Security Documents and this
Indenture. To the extent applicable, the Company will cause TIA Section 313(b),
relating to reports, and TIA Section 314(d), relating to the release of property
or securities from the Lien and security interest of the Security Documents, and
relating to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Security Documents, to be
complied with. Any certificate or opinion required by TIA Section 314(d) may be
made by an Officer of the Company except in cases
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where TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person will be an independent engineer, appraiser or
other expert selected or approved by the Trustee and the Collateral Agent in the
exercise of reasonable care.
10.04. Certificates and Opinions of Counsel. To the extent applicable, the
Company will furnish to the Trustee and the Collateral Agent, prior to each
proposed release of Collateral pursuant to the Security Documents:
(a) all documents required by TIA Section 314(d); and
(b) an Opinion of Counsel, which may be rendered by internal counsel to
the Company, to the effect that such accompanying documents constitute all
documents required by TIA Section 314(d) and that such release is authorized or
permitted by this Indenture and the Security Documents and that all conditions
precedent to such release have been satisfied.
The Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of Counsel.
10.05. Certificates of the Trustee. In the event that the Company wishes
to release Collateral in accordance with the Security Documents at a time when
the Trustee is not itself also the Collateral Agent and have delivered the
certificates and documents required by the Security Documents and Sections 10.03
and 10.04 hereof, the Trustee will determine whether it has received all
documentation required by TIA Section 314(d) in connection with such release
and, based on such determination and the Opinion of Counsel delivered pursuant
to Section 10.04(b), will deliver a certificate to the Collateral Agent setting
forth such determination.
10.06. Authorization of Actions to Be Taken by the Trustee Under the
Security Documents. Subject to the provisions of Section 7.01 and 7.02 hereof,
the Trustee may, in its sole discretion and without the consent of the Holders,
take, on behalf of the Holders, or direct, on behalf of the Holders, the
Collateral Agent to take, all actions it deems necessary or appropriate in order
to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect of the
Obligations of the Company and the Guarantors hereunder. The Trustee will have
power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or of the
Trustee).
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10.07. Authorization of Receipt and Distribution of Funds by the Trustee
Under the Security Documents. The Trustee is authorized to receive any funds for
the benefit of the Holders distributed under the Security Documents, and to make
further distributions of such funds to the Holders according to the provisions
of this Indenture.
10.08. Termination of Security Interest. The Trustee will, at the request
of the Company, deliver a certificate to the Collateral Agent stating that such
Obligations have been paid in full, and instruct the Collateral Agent to release
the Liens securing the Obligations pursuant to this Indenture and the Security
Documents upon (1) payment in full of the principal of, premium, if any, accrued
and unpaid interest on the Notes and all other Obligations under this Indenture,
the Note Guarantees and the Security Documents that are due and payable at or
prior to the time such principal, premium, accrued and unpaid interest are paid,
(2) a satisfaction and discharge of this Indenture as described in Article VIII
or (3) a legal defeasance or covenant defeasance as described in Article VIII.
Upon receipt of such instruction, the Trustee, if it is the Collateral Agent,
shall, or, if it is not the Collateral Agent, shall request the Collateral Agent
to, execute, deliver or acknowledge any necessary or proper instruments of
termination, satisfaction or release to evidence the release of all such Liens.
10.09. Trustee Serving as Collateral Agent; Amendments or Supplements to,
or Replacements of, the Security Documents. (a) If the Trustee shall become the
Collateral Agent, it shall be authorized to appoint co-Collateral Agents as
necessary in its sole discretion. Except as otherwise explicitly provided herein
or in the Security Documents, neither the Trustee nor any of its respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The Trustee shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers, and neither the Trustee nor any of its officers, directors, employees or
agents shall be responsible for any act or failure to act hereunder, except for
its own willful misconduct, negligence or bad faith.
(b) The Trustee is authorized and directed to (i) if the Trustee shall
become the Collateral Agent, enter into the Security Documents, (ii) bind the
Holders on the terms as set forth in the Security Documents and the Holders are
hereby deemed to have expressly authorized the Trustee to enter into the
Security Documents on their behalf and expressly agree to be bound to the terms
of the Security Documents on the terms set forth in such Security Documents and
(iii) perform and observe its obligations under the Security Documents.
(c) If at any time following the Discharge of First Lien Obligations the
Company or any Guarantor incurs Indebtedness under any Credit Facility pursuant
to Section 4.03(b)(i), the Company shall deliver to the Trustee an Officers'
Certificate so stating and requesting the Trustee to enter into one or more
amendments or supplements to, or replacements of, the Security Documents, as
applicable, establishing and setting forth the respective rights of the lenders
under such new Credit Agreement and the Holders in respect of their shared Lien
on the Collateral. The Trustee shall (and is hereby authorized and directed to)
enter into such amendments or supplements to, or replacements of, the Security
Documents, bind the Holders on the terms set forth therein, and perform and
observe its obligations thereunder.
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10.10. Designations. For purposes of the provisions hereof requiring the
Company to designate Indebtedness for the purposes of the term "First-Lien
Credit Facilities" or any other such designations hereunder, any such
designation shall be sufficient if the relevant designation is set forth in
writing, signed on behalf of the Company by an Officer and delivered to the
Trustee and the Collateral Agent. For all purposes hereof, the Company hereby
designates the Credit Facilities provided pursuant to the Credit Agreement and
the Other First-Lien Debt as "First-Lien Credit Facilities".
ARTICLE XI
NOTE GUARANTEES
11.01. Note Guarantees. (a) Each Guarantor hereby jointly and severally
irrevocably and unconditionally Guarantees, as a primary obligor and not merely
as a surety, to each Holder and to the Trustee and its successors and assigns
the full and punctual payment when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, of all obligations of the Company
under this Indenture (including Obligations to the Trustee), the Notes and the
other Indenture Documents, whether for payment of principal of, premium, if any,
interest on or in respect of the Notes and all other monetary Obligations of the
Company under this Indenture, the Notes and the other Indenture Documents,
whether for fees, expenses, indemnification or otherwise (all the foregoing
being hereinafter collectively called the "Guaranteed Obligations"). Each
Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this Article XI
notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and
protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Notes or the Guaranteed Obligations. The obligations of each Guarantor
hereunder shall not be affected by (i) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (iv) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or any
of them; (v) the failure of any Holder or Trustee to exercise any right or
remedy against any other Guarantor; or (vi) any change in the ownership of such
Guarantor, except as provided in Section 11.03.
(c) Each Guarantor hereby waives any right to which it may be entitled to
have its obligations hereunder divided among the Guarantors, such that such
Guarantor's obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Company first be used and depleted as payment of the Company's or such
Guarantor's obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Company be sued prior to an action
being initiated against such Guarantor.
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(d) Each Guarantor further agrees that its Note Guarantee herein
constitutes a guarantee of payment when due (and not a guarantee of collection)
and waives any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b), 11.02, 11.03 and
11.07, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than
payment of the Guaranteed Obligations in full), including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Notes or any
other agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity.
(f) Each Guarantor agrees that its Note Guarantee shall remain in full
force and effect until payment in full of all the Guaranteed Obligations. Each
Guarantor further agrees that its Note Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the
Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, each Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid amount of such Guaranteed Obligations and (ii)
accrued and unpaid interest on such Guaranteed Obligations then due and owing
(but only to the extent not prohibited by law).
(h) Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guaranteed Obligations
guaranteed hereby until payment in full of all Guaranteed Obligations. Each
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Guaranteed
Obligations guaranteed hereby may be accelerated as provided in Article VI for
the purposes of any Note Guarantee herein, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article VI, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this Section 11.01.
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(i) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.01.
(j) Upon request of the Trustee, each Guarantor shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
11.02. Limitation on Liability. Any term or provision of this Indenture to
the contrary notwithstanding, the maximum aggregate amount of the Guaranteed
Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Indenture, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
11.03. Releases of Note Guarantees. A Note Guarantee may be released
without any action required on the part of the Trustee or any Holder as provided
hereby. Whether prior to or after the Discharge of First Lien Obligations, upon
the request of the Company pursuant to an Officers' Certificate certifying that
all conditions precedent hereunder have been met and without the consent of any
Holder, a Note Guarantee may be released under any one of the following
circumstances:
(a) if all of the capital stock of, or other equity interests in, or all
or substantially all of the assets of such Guarantor is sold or otherwise
disposed of (including by way of merger or consolidation) to a Person other than
the Company or any Domestic Subsidiaries or (ii) if such Guarantor ceases to be
a Restricted Subsidiary, and the Company otherwise complies, to the extent
applicable, with Sections 4.06 and 5.01; or
(b) if the Company designates such Guarantor as an Unrestricted
Subsidiary.
Upon delivery by the Company to the Trustee of an Officers' Certificate
and an Opinion of Counsel to the effect that such release was made by the
Company in accordance with the provisions of this Indenture, the Trustee will
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee
will remain liable for the full amount of principal of, premium, if any, and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article XI.
11.04. Successors and Assigns. This Article XI shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Notes shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
11.05. No Waiver. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this
Article XI shall operate as a
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waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights, remedies
and benefits of the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or benefits which
either may have under this Article XI at law, in equity, by statute or
otherwise.
11.06. Modification. No modification, amendment or waiver of any provision
of this Article XI, nor the consent to any departure by any Guarantor therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
any Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
11.07. Execution of Supplemental Indenture for Future Guarantors. Each
Subsidiary which is required to become a Guarantor pursuant to Section 4.11
shall promptly execute and deliver to the Trustee a supplemental indenture in
the form of Exhibit B hereto pursuant to which such Subsidiary shall become a
Guarantor under this Article XI and shall guarantee the Guaranteed Obligations.
Concurrently with the execution and delivery of such supplemental indenture, the
Company shall deliver to the Trustee an Opinion of Counsel and an Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and that, subject to the
application of bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer and other similar laws relating to creditors' rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, the Notes Guarantee of such Guarantor is a legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms and or to such other matters as the Trustee may reasonably
request.
11.08. Non-Impairment. The failure to endorse a Note Guarantee on any Note
shall not affect or impair the validity thereof.
ARTICLE XII
MISCELLANEOUS
12.01. Trust Indenture Act Controls. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, TIA Sections 310 to 318, inclusive, such imposed
duties or incorporated provision shall control.
12.02. Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Reptron Electronics, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
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if to the Trustee:
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed, first
class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
12.03. Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
12.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under any Indenture Document (other than a request to
authenticate the Notes issued on the Closing Date in accordance with this
Indenture), the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture or any other Indenture Document, as the
case may be, relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.
12.05. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in
this Indenture (other than pursuant to Section 4.09) shall include:
(a) a statement that the individual making such certificate or opinion has
read such covenant or condition;
(b) brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(c) a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an
Officers' Certificate or on certificates of public officials.
12.06. When Notes Disregarded. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, any Guarantor or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Guarantor shall be disregarded and deemed not to
be outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which the Trust Officer of the Trustee knows are so owned shall be so
disregarded. Subject to the foregoing, only Notes outstanding at the time shall
be considered in any such determination. Notwithstanding the foregoing, Notes
that are to be acquired by the Company, any Guarantor or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Guarantor pursuant to an exchange offer, tender
offer or other agreement shall not be deemed to be owned by such entity until
legal title to such Notes passes to such entity.
12.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and the
Paying Agent may make reasonable rules for their functions.
12.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or other
day on which banking institutions are not required by law or regulation to be
open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
12.09. GOVERNING LAW. THIS INDENTURE AND THE NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.10. No Recourse Against Others. A director, officer, employee,
stockholder or member, as such, of the Company or any of the Guarantors, shall
not have any liability for any obligations of the Company or any of the
Guarantors under the Notes or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Notes.
12.11. Successors. All agreements of each of the Company and each
Guarantor in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
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12.12. Multiple Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to prove this Indenture.
12.13. Table of Contents; Headings. The table of contents, cross reference
sheet and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
12.14. Notice of Discharge of Senior Lender Claims. The Company shall
promptly notify the Trustee in writing of the occurrence of a "Discharge of
Senior Lender Claims" (as such term is defined in the Intercreditor Agreement).
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
REPTRON ELECTRONICS, INC.
By:
------------------------------------
Name:
Title:
HSBC BANK USA,
as Trustee
By:
------------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF NOTE]
[Global Notes Legend](1)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST
GRANTED TO THE TRUSTEE PURSUANT TO THIS INSTRUMENT AND THE EXERCISE OF ANY RIGHT
OR REMEDY BY THE TRUSTEE HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE
INTERCREDITOR AND SUBORDINATION AGREEMENT, DATED AS OF __________, 2004 (AS
AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"INTERCREDITOR AND SUBORDINATION AGREEMENT"), AMONG REPTRON ELECTRONICS, INC.,
CONGRESS FINANCIAL CORPORATION (FLORIDA), AS AGENT, AND HSBC BANK USA, A NEW
YORK BANKING CORPORATION, AS TRUSTEE. IN THE EVENT OF ANY CONFLICT BETWEEN THE
TERMS OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT AND THIS INSTRUMENT, THE
TERMS OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT SHALL GOVERN.
A-1
No.________ $__________
Senior Secured Note due 2009
CUSIP No. ______
Reptron Electronics, Inc., a Florida corporation, promises to pay to [Cede
& Co.], or registered assigns, the principal sum [of Dollars] [listed on the
Schedule of Increases or Decreases in Global Note attached hereto](2) on
__________, 2009.
Interest Payment Dates: ____________ and ________________.
Record Dates: ______________ and _______________.
Additional provisions of this Note are set forth on the other side of this
Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
REPTRON ELECTRONICS, INC.
By:_______________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
HSBC BANK USA,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:_____________________________
Authorized Officer
----------
(1) If the Notes is to be issued in global form, add the Global Notes Legend and
the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL NOTES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".
(2) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
A-2
[FORM OF REVERSE SIDE OF NOTE]
SENIOR SECURED NOTE DUE 2009
1. INTEREST
Reptron Electronics, Inc., a Florida corporation (the "Company"), promises
to pay interest on the principal amount of this Note at the rate per annum of
7.0% for the period beginning on the Closing Date (as such term is defined in
the Indenture referred to below) through and including January __, 2006, and at
the rate of 8.0% after January __, 2006. The Company shall pay interest
semiannually on January ___ and June __ of each year, commencing on June __,
2004. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from January __, 2004, until the principal hereof is paid.
Interest shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
2. METHOD OF PAYMENT
The Company shall pay interest on the Notes (except defaulted interest) to
the Persons who are registered Holders of Notes at the close of business on the
__________ or ___________ next preceding the interest payment date even if Notes
are canceled after the record date and on or before the interest payment date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal, premium and interest, in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Notes represented by a
Global Note (including principal, premium and interest) shall be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Note (including principal, premium and interest) by mailing a check
to the registered address of each Holder thereof; provided, however, that
payments on the Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, HSBC Bank USA, a New York banking corporation (the "Trustee"),
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice. The Company or any of
its domestically incorporated Wholly Owned Restricted Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
A-3
4. INDENTURE
The Company issued the Notes under an Indenture dated as of _____________,
2004 (the "Indenture"), among the Company, and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Note are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the TIA for a
statement of such terms and provisions.
The Note are senior secured obligations of the Company. The Indenture
imposes certain limitations on the ability of the Company and its Restricted
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, issue or sell shares of capital
stock of such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates and make asset dispositions. The Indenture also imposes
limitations on the ability of the Company and each Guarantor to consolidate or
merge with or into any other Person or convey, transfer or lease all or
substantially all of the property of the Company.
To guarantee the due and punctual payment of the principal, premium, if
any, and interest, if any, on the Notes and all other amounts payable by the
Company under the Indenture and the Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
secured basis pursuant to the terms of the Indenture.
The Note, the Note Guarantees and all other Obligations of the Company and
the Guarantors are secured on a second-priority basis by the Liens created by
the Security Documents pursuant to, and subject to the terms of, the Indenture.
5. OPTIONAL REDEMPTION
The Notes shall be redeemable at the option of the Company, in whole or in
part, on one or more occasions, on not less than 30 nor more than 60 days prior
notice, at the following redemption prices (expressed as percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on January __ of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2004 102%
2005 102%
2006 101%
2007 101%
A-4
6. SINKING FUND
The Note are not subject to any sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of Notes to
be redeemed at his or her registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Notes (or portions thereof) to be redeemed on the redemption date is deposited
with the Paying Agent on or before the redemption date and certain other
conditions are satisfied, on and after such date interest ceases to accrue on
such Notes (or such portions thereof) called for redemption.
8. REPURCHASE OF NOTES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL OR
ASSET DISPOSITIONS
Upon a Change of Control, any Holder of Notes will have the right, subject
to certain conditions specified in the Indenture, to cause the Company to
repurchase all or any part of the Notes of such Holder at a purchase price equal
to 101% of the principal amount of the Notes to be repurchased plus accrued and
unpaid interest, if any, to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of purchase) as
provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Notes upon the occurrence of certain events upon
Asset Dispositions.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Note are in registered form without coupons in denominations of $1,000
and whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. Upon any transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Notes not to be redeemed) or to transfer or
exchange any Notes for a period of 15 days prior to a selection of Notes to be
redeemed or 15 days before an interest payment date.
10. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered Holder of this
Note may be treated as the owner of it for all purposes.
A-5
11. UNCLAIMED MONEY
If money for the payment of principal, premium or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at their written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate some
of or all their obligations under the Notes and the Indenture if the Company
deposit with the Trustee money or U.S. Government Obligations for the payment of
principal, premium, if any, and interest on the Notes to redemption or maturity,
as the case may be.
13. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture, the Notes, the Note Guarantees or the Security Documents may be
amended without prior notice to any Holder but with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes and (b) any default may be waived with the written consent of the Holders
of at least a majority in principal amount of the outstanding Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture, the
Notes, the Note Guarantees or the Security Documents (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article V; (iii) to
provide for uncertificated Notes in addition to or in place of certificated
Notes; provided, however, that the uncertificated Notes are issued in registered
form for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code; (iv) to
add additional Note Guarantees with respect to the Notes; (v) to add to the
covenants of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company; (vi) to comply with any
requirement of the Commission in connection with qualifying, or maintaining the
qualification of, this Indenture under the TIA; (vii) if necessary, in
connection with any addition or release of Collateral permitted under the terms
of the Indenture or the Security Documents; or (viii) prior to the Discharge of
First Lien Obligations, to give effect to any amendment, waiver or consent in
respect of any Security Document that does not materially affect the rights of
the Holders.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company) and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Notes may declare the principal of, premium, if any, and accrued
but unpaid interest on all the Notes to be due and payable. If an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization
of the Company occurs, the principal of and interest on all the Notes shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under
A-6
certain circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Notes unless (i) such Holder has previously given the Trustee notice that an
Event of Default is continuing, (ii) Holders of at least 25% in principal amount
of the outstanding Notes have requested the Trustee in writing to pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Notes have not given the Trustee a direction
inconsistent with such request within such 60-day period. Subject to certain
restrictions, the Holders of a majority in principal amount of the outstanding
Notes are given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee, stockholder or member, as such, of the
Company or any of the Guarantors, shall not have any liability for any
obligations of the Company or any of the Guarantors under the Notes or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the Trustee
(or an authenticating agent) manually signs the certificate of authentication on
the other side of this Note.
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18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS
The Company may have caused CUSIP numbers to be printed on the Notes and
directed the Trustee to use such CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of any such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE TEXT OF
THIS NOTE.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
________________________________________________________________
Date: ________________ Your Signature: _____________________
________________________________________________________________
Sign exactly as your name appears on the other side of this Note. Signature must
be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The following
increases or decreases in this Global Note have been made:
Amount of decrease in Amount of increase in
Principal Amount of this Principal Amount in this Principal Global Note
Date of Exchange Global Note Global Note decrease
---------------- ----------- ----------- --------
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY PURSUANT
TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
ASSET DISPOSITION [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE, STATE THE AMOUNT
($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE OTHER SIDE OF THE NOTE)
SIGNATURE
GUARANTEE:_______________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTY
MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE.
A-11
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of [date],
among [GUARANTOR] (the "New Guarantor"), a subsidiary of Reptron Electronics,
Inc., a Florida corporation (the "Company"), [list subsidiaries] and HSBC BANK
USA, a New York banking corporation, as trustee under the indenture referred to
below (the "Trustee").
W I T N E S S E T H:
WHEREAS the Company and [list subsidiaries] (collectively, the "Existing
Guarantors") have heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of ____________, 2004, providing for the issuance of
Senior Secured Notes due 2009 (the "Notes");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations under
the Notes pursuant to a Note Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the Notes
as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and
severally with all the Existing Guarantors, to unconditionally guarantee the
Company's obligations under the Notes on the terms and subject to the conditions
set forth in Article XI of the Indenture and to be bound by all other applicable
provisions of the Indenture and the Notes.
2. Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4. Trustee Makes No Representation. The Trustee makes no representation as
to the validity or sufficiency of this Supplemental Indenture or for or in
respect of the recitals contained herein, all of which are made by the Company
and the Guarantors.
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5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
By:_______________________________________
Name:
Title:
[list subsidiaries],
By:_______________________________________
Name:
Title:
HSBC BANK USA, as Trustee,
By:_______________________________________
Name:
Title:
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