-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
INDENTURE
Dated as of May 9, 1997
Among
RELIANT BUILDING PRODUCTS, INC., as Issuer,
The GUARANTORS Named herein
and
BANK ONE, COLUMBUS, NA, as Trustee
__________________
$70,000,000
10 7/8% Senior Subordinated Notes due 2004, Series A
10 7/8% Senior Subordinated Notes due 2004, Series B
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
Section 310(a)(1).......................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.08, 7.10.
(b)............................................. 7.08; 7.10; 13.02
(c)............................................. N.A.
Section 311(a)............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
Section 312(a)............................................. 2.05
(b)............................................. 13.03
(c)............................................. 13.03
Section 313(a)............................................. 7.06
(b)(1).......................................... 7.06
(b)(2).......................................... 7.06
(c)............................................. 7.06; 13.02
(d)............................................. 7.06
Section 314(a)............................................. 4.11; 4.12; 13.02
(b)............................................. N.A.
(c)(1).......................................... 13.04
(c)(2).......................................... 13.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 13.05
(f)............................................. N.A.
Section 315(a)............................................. 7.01(b)
(b)............................................. 7.05; 13.02
(c)............................................. 7.01(a)
(d)............................................. 7.01(c)
(e)............................................. 6.11
Section 316(a)(last sentence).............................. 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. 10.04
Section 317(a)(1).......................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
Section 318(a)............................................. 13.01
________________
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . 20
SECTION 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.02. Execution and Authentication.. . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.03. Registrar and Paying Agent.. . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.04. Paying Agent To Hold Assets in Trust.. . . . . . . . . . . . . . . . . 23
SECTION 2.05. Securityholder Lists.. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.07. Replacement Securities.. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.08. Outstanding Securities.. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.09. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.10. Temporary Securities.. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.11. Cancellation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.12. Defaulted Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.13. CUSIP Number.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.14. Deposit of Moneys. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.15. Book-Entry Provisions for Global Securities. . . . . . . . . . . . . . 26
SECTION 2.16. Registration of Transfers and Exchanges. . . . . . . . . . . . . . . . 27
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.. . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.02. Selection of Securities To Be Redeemed.. . . . . . . . . . . . . . . . 31
SECTION 3.03. Notice of Redemption.. . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.04. Effect of Notice of Redemption.. . . . . . . . . . . . . . . . . . . . 32
SECTION 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.06. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . 33
SECTION 4.03. Transactions with Affiliates.. . . . . . . . . . . . . . . . . . . . . 33
-i-
SECTION 4.04. Limitation on Indebtedness.. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.05. Disposition of Proceeds of Asset Sales.. . . . . . . . . . . . . . . . 35
SECTION 4.06. Limitation on Restricted Payments. . . . . . . . . . . . . . . . . . . 37
SECTION 4.07. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.08. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . 39
SECTION 4.09. Notice of Defaults.. . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.10. Maintenance of Properties and Insurance. . . . . . . . . . . . . . . . 40
SECTION 4.11. Compliance Certificate.. . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.12. Provision of Financial Information.. . . . . . . . . . . . . . . . . . 41
SECTION 4.13. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . . . . . 41
SECTION 4.14. Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.15. Limitation on Senior Subordinated Indebtedness.. . . . . . . . . . . . 42
SECTION 4.16. Limitations on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.17. Designation of Unrestricted Subsidiaries.. . . . . . . . . . . . . . . 43
SECTION 4.18. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.19. Guaranty of Notes by Restricted Subsidiaries.. . . . . . . . . . . . . 44
SECTION 4.20. Limitation on the Sale or Issuance of Equity Interests of
Restricted Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.21. Limitation on Lines of Business. . . . . . . . . . . . . . . . . . . . 45
SECTION 4.22. Payments for Consent.. . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.. . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.02 Successor Corporation Substituted.. . . . . . . . . . . . . . . . . . . 46
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.02. Acceleration.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.03. Other Remedies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.04. Waiver of Past Default.. . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.07. Rights of Holders To Receive Payment.. . . . . . . . . . . . . . . . . 50
SECTION 6.08. Collection Suit by Trustee.. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.09. Trustee May File Proofs of Claim.. . . . . . . . . . . . . . . . . . . 50
SECTION 6.10. Priorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
-ii-
SECTION 7.03. Individual Rights of Trustee.. . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.04. Trustee's Disclaimer.. . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.05. Notice of Defaults.. . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.07. Compensation and Indemnity.. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.08. Replacement of Trustee.. . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.09. Successor Trustee by Merger, etc.. . . . . . . . . . . . . . . . . . . 56
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.11. Preferential Collection of Claims Against Company. . . . . . . . . . . 56
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Indebtedness.. . . . . . . . . . . . 57
SECTION 8.02. No Payment on Securities in Certain Circumstances. . . . . . . . . . . 57
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.. . . . . . . . . . . . 58
SECTION 8.04. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.05. Obligations of Company Unconditional.. . . . . . . . . . . . . . . . . 59
SECTION 8.06. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.. . . . 60
SECTION 8.08. Trustee's Relation to Senior Indebtedness. . . . . . . . . . . . . . . 61
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness. . . . . . . . . . . . . . . 61
SECTION 8.10. Securityholders Authorize Trustee To Effectuate Subordination of
Securities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.11. This Article Not To Prevent Events of Default. . . . . . . . . . . . . 61
SECTION 8.12. Trustee's Compensation Not Prejudiced. . . . . . . . . . . . . . . . . 61
SECTION 8.13. No Waiver of Subordination Provisions. . . . . . . . . . . . . . . . . 62
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust for
Securityholders; Payments May Be Paid Prior to Dissolution.. . . . . . 62
SECTION 8.15. Acceleration of Securities.. . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.. . . . . . . . . . . . . . . . . 62
SECTION 9.02. Application of Trust Money.. . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.03. Repayment to Company.. . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.04. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.02. With Consent of Holders.. . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.03. Compliance with Trust Indenture Act.. . . . . . . . . . . . . . . . . 67
SECTION 10.04. Revocation and Effect of Consents.. . . . . . . . . . . . . . . . . . 67
SECTION 10.05. Notation on or Exchange of Securities.. . . . . . . . . . . . . . . . 67
-iii-
SECTION 10.06. Trustee To Sign Amendments, etc.. . . . . . . . . . . . . . . . . . 68
ARTICLE ELEVEN
GUARANTY
SECTION 11.01. Unconditional Guaranty. . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.02. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.03. Release of a Guarantor. . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.04. Limitation of Guarantor's Liability.. . . . . . . . . . . . . . . . 69
SECTION 11.05. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.06. Execution of Security Guaranty. . . . . . . . . . . . . . . . . . . 70
SECTION 11.07. Subordination of Subrogation and Other Rights.. . . . . . . . . . . 70
ARTICLE TWELVE
SUBORDINATION OF GUARANTY
SECTION 12.01. Guaranty Obligations Subordinated to Guarantor Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.02. No Payment on Guaranties in Certain Circumstances.. . . . . . . . . 70
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc. . . . . . . . . . . 71
SECTION 12.04. Subrogation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.05. Obligations of Guarantors Unconditional.. . . . . . . . . . . . . . 73
SECTION 12.06. Notice to Trustee.. . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 12.07. Reliance on Judicial Order or Certificate of Liquidating Agent. . . 74
SECTION 12.08. Trustee's Relation to Guarantor Senior Indebtedness.. . . . . . . . 74
SECTION 12.09. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Guarantor Senior Indebtedness. . . . . . . 75
SECTION 12.10. Securityholders Authorize Trustee To Effectuate Subordination of
Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.11. This Article Not To Prevent Events of Default.. . . . . . . . . . . 75
SECTION 12.12. Trustee's Compensation Not Prejudiced.. . . . . . . . . . . . . . . 75
SECTION 12.13. No Waiver of Guaranty Subordination Provisions. . . . . . . . . . . 75
SECTION 12.14. Payments May Be Paid Prior to Dissolution.. . . . . . . . . . . . . 76
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls. . . . . . . . . . . . . . . . . . . . 76
SECTION 13.02. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 13.03. Communications by Holders with Other Holders. . . . . . . . . . . . 77
SECTION 13.04. Certificate and Opinion as to Conditions Precedent. . . . . . . . . 77
SECTION 13.05. Statements Required in Certificate or Opinion.. . . . . . . . . . . 78
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.. . . . . . . . . . . . . 78
SECTION 13.07. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.08. No Recourse Against Others. . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.09. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 13.10. Counterpart Originals.. . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 13.11. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 13.12. No Adverse Interpretation of Other Agreements.. . . . . . . . . . . 79
-iv-
SECTION 13.13. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S-1
EXHIBIT A Form of Series A Security. . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Series B Security. . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Form of Transfer Certificate . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Transfer Certificate for Institutional Accredited Investors. . . E-1
_________________
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-v-
INDENTURE dated as of May 9, 1997, among RELIANT BUILDING PRODUCTS,
INC., a Delaware corporation and formerly named Xxxxxx Building Products, Inc.
(the "COMPANY"), the GUARANTORS named herein and BANK ONE, COLUMBUS, NA, as
trustee (the "TRUSTEE").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (a)
assumed in connection with an Acquisition from such Person or (b) existing at
the time such Person becomes a Restricted Subsidiary or is merged or
consolidated with or into the Company or any Restricted Subsidiary.
"ACQUIRED PERSON" means, with respect to any specified Person,
any other Person which merges with or into or becomes a Subsidiary of such
specified Person.
"ACQUISITION" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or
any Restricted Subsidiary to any other Person, or any acquisition or purchase
of Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated with or merged with or into
the Company or any Restricted Subsidiary or (ii) any acquisition by the
Company or any Restricted Subsidiary of the assets of any Person which
constitute substantially all of an operating unit or line of business of such
Person or which is otherwise outside of the ordinary course of business.
"ADDITIONAL INTEREST" has the meaning provided in Section 4(a)
of the Registration Rights Agreement.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise; PROVIDED, HOWEVER, that (i) beneficial ownership of 10.0% or
more of the then outstanding Equity Interests of a Person shall be deemed to
be control for purposes of Section 4.03; and (ii) no individual, other than
a director of the Company or an officer of the Company with a policy making
function, shall be deemed an Affiliate of the Company or any of its
Subsidiaries, solely by reason of such individual's employment, position or
responsibilities by or with respect to the Company or any of its Subsidiaries.
"AFFILIATE TRANSACTION" see Section 4.03.
-2-
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"ASSET SALE" means any direct or indirect sale, conveyance,
transfer, lease (that has the effect of a disposition) or other disposition
(including, without limitation, any merger, consolidation or sale-leaseback
transaction) to any Person other than the Company or a Wholly Owned
Restricted Subsidiary, in one transaction or a series of related
transactions, of (i) any Equity Interest of any Restricted Subsidiary; (ii)
any material license, franchise or other authorization of the Company or any
Restricted Subsidiary; (iii) any assets of the Company or any Restricted
Subsidiary which constitute substantially all of an operating unit or line of
business of the Company or any Restricted Subsidiary; or (iv) any other
property or asset of the Company or any Restricted Subsidiary outside of the
ordinary course of business (including the receipt of proceeds paid on
account of the loss of or damage to any property or asset and awards of
compensation for any asset taken by condemnation, eminent domain or similar
proceedings). For purposes of this definition the term "Asset Sale" shall not
include (a) any transaction consummated in compliance with Section 5.01 and
the creation of any Lien not prohibited by Section 4.18; PROVIDED, HOWEVER,
that any transaction consummated in compliance with Section 5.01 involving a
sale, conveyance, assignment, transfer, lease or other disposition of less
than all of the properties or assets of the Company and the Restricted
Subsidiaries shall be deemed to be an Asset Sale with respect to the
properties or assets of the Company and Restricted Subsidiaries that are not
so sold, conveyed, assigned, transferred, leased or otherwise disposed of in
such transaction; (b) sales of property or equipment that has become worn
out, obsolete or damaged or otherwise unsuitable for use in connection with
the business of the Company or any Restricted Subsidiary, as the case may be;
(c) any transaction consummated in compliance with Section 4.06; and (d)
sales of accounts receivable for cash at Fair Market Value. In addition,
solely for purposes of Section 4.05, any sale, conveyance, transfer, lease or
other disposition of any property or asset, whether in one transaction or a
series of related transactions, involving assets with a Fair Market Value not
in excess of $1.0 million in any fiscal year shall be deemed not to be an
Asset Sale.
"ATEMCO" means the joint venture created by the ATEMCO Joint
Venture Agreement.
"ATEMCO JOINT VENTURE AGREEMENT" means the Joint Venture
Agreement of ATEMCO dated as of March 3, 1982 among the Company, Tower
Extrusions, Inc. and MEB Enterprises, Inc., as amended and in effect from
time to time.
"BANKRUPTCY LAW" see Section 6.01.
"BOARD OF DIRECTORS" means the Board of Directors of Holdings,
the Company or any Guarantor, as the case may be, or any authorized committee
of such Board of Directors.
"BOARD RESOLUTION" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"CAPITAL LEASE OBLIGATION" means, with respect to any Person, at
the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be so required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
"CASH EQUIVALENTS" means: (a) U.S. dollars; (b) securities
issued or directly and fully guaranteed or insured by the U.S. government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition; (c) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any domestic commercial bank
having capital
-3-
and surplus in excess of $500 million; (d) repurchase obligations with a term
of not more than seven days for underlying securities of the types described
in clauses (b) and (c) entered into with any financial institution meeting
the qualifications specified in clause (c) above; and (e) commercial paper
rated P-1, A-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc.
or Standard & Poor's Corporation, respectively, and in each case maturing
within six months after the date of acquisition.
"CHANGE OF CONTROL" means the occurrence of any of the following
events (whether or not approved by the Board of Directors of the Company or
Holdings): (i) prior to the first public offering of Voting Equity Interests
of Holdings or the Company, either (x) the Permitted Holders cease to be the
"beneficial owner" or "beneficial owners" (as defined in Rule 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of at least a majority of
the total voting power of the then outstanding Voting Equity Interests of
Holdings or of the Company, or (y) the Permitted Holders cease to be entitled
by voting power, contract or otherwise to elect or cause the election of
directors of Holdings or the Company having a majority of the total voting
power of the Board of Directors of Holdings or the Company, as the case may
be, in each case, whether as a result of issuance of securities of Holdings
or the Company, as the case may be, any merger, consolidation, liquidation or
dissolution of Holdings or the Company, as the case may be, any direct or
indirect transfer of securities by any Permitted Holder or otherwise; (ii)
following the first public offering of Voting Equity Interests of Holdings or
the Company, any Person (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in clause (i) above, 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, upon the happening of an event
or otherwise), directly or indirectly, of more than 35% of the total voting
power of the then outstanding Voting Equity Interests of Holdings or the
Company; PROVIDED, HOWEVER, that the Permitted Holders beneficially own (as
defined in clause (i) above), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the then outstanding Voting
Equity Interests of Holdings or the Company, as the case may be, than such
other Person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the Board of
Directors of Holdings or the Company, as the case may be; (iii) Holdings or
the Company consolidates with, or merges with or into, another Person (other
than the Company or any Wholly Owned Restricted Subsidiary) or Holdings or
any of its Subsidiaries sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of the assets of Holdings and
its Subsidiaries (determined on a consolidated basis) to any Person (other
than the Company or any Wholly Owned Restricted Subsidiary) or the Company or
the Restricted Subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of the assets of the Company
and the Restricted Subsidiaries (determined on a consolidated basis) to any
Person (other than the Company or a Wholly Owned Restricted Subsidiary),
other than any such transaction where immediately after such transaction the
Person or Persons that beneficially owned (as defined in clause (i) above,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the happening
of an event or otherwise) immediately prior to such transaction, directly or
indirectly, the then outstanding Voting Equity Interests of Holdings or the
Company, as the cause may be, beneficially own (as so determined), directly
or indirectly, a majority of the total voting power of the then outstanding
Voting Equity Interests of the surviving or transferee Person; or (iv) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of Holdings or the Company
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of Holdings or the Company,
as the case may be, was approved by a vote of a majority of the directors of
Holdings or the Company, as the case may be, then still in office who were
either directors at the beginning of such period or whose election or
-4-
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of Holdings or the Company, as
the case may be, then in office. For purposes of clause (i) and clause (ii)
above, Permitted Holders shall be deemed to beneficially own any Voting Equity
Interests of an entity (the "SPECIFIED ENTITY") held by any other entity (the
"PARENT ENTITY") so long as the Permitted Holders beneficially own, directly or
indirectly, a majority of the voting power of the then outstanding Voting Equity
Interests of the parent entity.
"CHANGE OF CONTROL DATE" see Section 4.14.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, a Vice President or its Treasurer,
and by an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"CONSOLIDATED COVERAGE RATIO" as of any date of determination
means the ratio of (i) the aggregate amount of Consolidated EBITDA for the
four quarter period of the most recent four consecutive fiscal quarters
ending prior to the date of such determination (the "FOUR QUARTER PERIOD") to
(ii) Consolidated Interest Expense for such Four Quarter Period; PROVIDED,
HOWEVER, that (1) if the Company or any Restricted Subsidiary has incurred
any Indebtedness since the beginning of such Four Quarter 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, Consolidated EBITDA and Consolidated Interest Expense for such
Four Quarter 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 Four Quarter Period and the discharge of any other
Indebtedness repaid, repurchased or otherwise discharged with the proceeds of
such new Indebtedness as if such discharge had occurred on the first day of
such Four Quarter Period, (2) if since the beginning of such Four Quarter
Period the Company or any Restricted Subsidiary shall have made any Asset
Sale, the Consolidated EBITDA for such Four Quarter Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) directly
attributable to the assets that are the subject of such Asset Sale for such
Four Quarter Period or increased by an amount equal to the Consolidated
EBITDA (if negative) directly attributable thereto for such Four Quarter
Period and Consolidated Interest Expense for such Four Quarter 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 or otherwise discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection with such Asset Sale for
such Four Quarter Period (or, if the Equity Interests of any Restricted
Subsidiary are sold, the Consolidated Interest Expense for such Four Quarter
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), (3)
if since the beginning of such Four Quarter 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, Consolidated EBITDA and Consolidated Interest Expense for such
Four Quarter 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 Four Quarter Period, and (4) if
since the beginning of such Four Quarter Period any Person (that subsequently
became a Restricted Subsidiary or was
-5-
merged with or into the Company or any Restricted Subsidiary since the
beginning of such Four Quarter Period) shall have made any Asset Sale or any
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (2) or (3) above if made by the Company or a Restricted
Subsidiary during such Four Quarter Period, Consolidated EBITDA and
Consolidated Interest Expense for such Four Quarter Period shall be
calculated after giving PRO FORMA effect thereto as if such Asset Sale,
Investment or acquisition of assets occurred on, with respect to any
Investment or acquisition, the first day of such Four Quarter Period and,
with respect to any Asset Sale, the day prior to the first day of such Four
Quarter 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. 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 agreement under which Interest Rate Protection Obligations are
outstanding applicable to such Indebtedness if such agreement under which
such Interest Rate Protection Obligations are outstanding has a remaining
term as at the date of determination in excess of 12 months).
"CONSOLIDATED EBITDA" means, for any period, the Consolidated
Net Income for such period, PLUS the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Income Tax
Expense for such period; (ii) Consolidated Interest Expense for such period;
(iii) depreciation and depletion expense for such period; (iv) amortization
expense for such period; and (v) all other non-cash items reducing
Consolidated Net Income for such period (other than any non-cash item
requiring an accrual or a reserve for cash disbursements in any future
period).
"CONSOLIDATED INCOME TAX EXPENSE" means, with respect to the
Company for any period, the provision for federal, state, local and foreign
income taxes payable by the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the
Company for any period, without duplication, the sum of (i) the interest
expense of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, including,
without limitation, (a) any amortization of debt discount; (b) the net cost
under Interest Rate Protection Obligations (including any amortization of
discounts); (c) the interest portion of any deferred payment obligation; (d)
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing; and (e) all capitalized
interest and all accrued interest; (ii) the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the
Company and the Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP; and (iii) dividends and
distributions in respect of Disqualified Equity Interests actually paid in
cash by the Company during such period as determined on a consolidated basis
in accordance with GAAP; PROVIDED, HOWEVER, that there shall be excluded
therefrom the amortization of deferred financing costs in connection with the
Transaction.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated
net income (loss) of the Company and the Restricted Subsidiaries; PROVIDED,
HOWEVER, that there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person if such person is not a Restricted
Subsidiary, except that (A) 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 to a
Restricted Subsidiary, to the limitations contained in clause (iii) below)
-6-
and (B) the Company's equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in determining
such Consolidated Net Income; (ii) any net income (loss) of any person
acquired by the Company or a Restricted Subsidiary in a pooling of interests
transaction for any period prior to the date of such acquisition; (iii) any
net income (loss) of any Restricted Subsidiary if such Restricted Subsidiary
is subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted Subsidiary,
directly or indirectly, to the Company except that (A) 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
that could have been distributed by such Restricted Subsidiary during such
period (regardless of any waiver) to the Company or another Restricted
Subsidiary as a dividend (subject, in the case of a dividend that could have
been made to another Restricted Subsidiary, to the limitation contained in
this clause) and (B) 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; (iv) any gain or loss realized upon the sale or
other disposition of any asset of the Company or the Restricted 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 Equity Interests of any
Person; (v) any extraordinary gain or loss; and (vi) the cumulative effect of
a change in accounting principles.
"CONSULTING AGREEMENT" means the Consulting Agreement dated as
of May 9, 1997 by and between the Company and Xxxxxx Group, as amended and in
effect from time to time.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address
of the Trustee specified in Section 13.02 or such other address as the
Trustee may give notice to the Company.
"CUSTODIAN" see Section 6.01.
"DEFAULT" means any event that is, or with the passage of time
or the giving of notice or both would become, an Event of Default.
"DEFEASANCE TRUST PAYMENT" see Section 8.01.
"DEPOSITORY" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or
another Person designated as Depository by the Company, which must be a
clearing agency registered under the Exchange Act.
"DESIGNATED GUARANTOR SENIOR INDEBTEDNESS" means, with respect
to any Guarantor, (a) any Indebtedness of such Guarantor outstanding under
the Senior Credit Facility and (b) any other Guarantor Senior Indebtedness of
such Guarantor which, at the time of determination, has an aggregate
principal amount outstanding, together with any commitments to lend
additional amounts, of at least $15.0 million, if the instrument governing
such Guarantor Senior Indebtedness expressly states that such Indebtedness is
"Designated Guarantor Senior Indebtedness" for purposes of this Indenture and
a Board Resolution setting forth such designation by the Company has been
filed with the Trustee.
"DESIGNATED SENIOR INDEBTEDNESS" means (a) any Indebtedness of
the Company outstanding under the Senior Credit Facility and (b) any other
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount outstanding, together with any commitments to lend
additional amounts, of at least $15.0 million, if the instrument governing
such Senior Indebtedness expressly states that such Indebtedness is
"Designated Senior Indebtedness" for purposes of this Indenture and a Board
Resolution setting forth such designation by the Company has been filed with
the Trustee.
-7-
"DESIGNATION" see Section 4.17.
"DESIGNATION AMOUNT" see Section 4.17.
"DISPOSITION" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"DISQUALIFIED EQUITY INTEREST" means any Equity Interest which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable at the option of the holder thereof), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise, or redeemable, at the option of the
holder thereof, in whole or in part, or exchangeable into Indebtedness on or
prior to the earlier of the Final Maturity Date or the date on which no
Securities remain outstanding.
"EQUITY INTEREST" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity p articipations, including partnership interests, whether general or
limited, in such Person, including any Preferred Equity Interests.
"EVENT OF DEFAULT" see Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"EXCHANGE SECURITIES" means the 10 7/8% Senior Subordinated
Notes due 2004, Series B, to be issued in exchange for the Initial Securities
pursuant to the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means any Indebtedness of the Company
and the Restricted Subsidiaries in existence on the Issue Date until such
amounts are repaid.
"EXPIRATION DATE" has the eaning set forth in the definition of
"OFFER TO PURCHASE" below.
"FAIR MARKET VALUE" means, with respect to any asset, the price
(after taking into account any liabilities relating to such assets) 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 which is
under any compulsion to complete the transaction; PROVIDED, HOWEVER, that the
Fair Market Value of any such asset or assets shall be determined
conclusively by the Board of Directors of the Company acting in good faith,
and shall be evidenced by a Board Resolution delivered to the Trustee.
"FINAL MATURITY DATE" means May 1, 2004.
"FOUR QUARTER PERIOD" has the meaning set forth in the
definition of "CONSOLIDATED COVERAGE RATIO" above.
"FUNDING GUARANTOR" see Section 11.05.
-8-
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at
the date of determination and which are consistently applied for all
applicable periods.
"XXXXXX GROUP" means Xxxxxx Group Inc., a Texas corporation, and
its successors.
"GLOBAL SECURITIES" means one or more IAI Global Securities and
144A Global Securities.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any
way the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit. A guarantee shall include, without limitation, any agreement to
maintain or preserve any other Person's financial condition or to cause any
other Person to achieve certain levels of operating results.
"GUARANTOR" means (i) each of RBP of Arizona, Inc., a Delaware
corporation, RBP Custom Glass, Inc., a Delaware corporation, Timber Tech,
Inc., a Mississippi corporation, RBP Trans, Inc., a Delaware corporation, RBP
Fenesco, Inc., a Delaware corporation, XxXxx Builders Supply Company, Inc.,
an Oklahoma corporation, and RBP of Texas, Inc., a Delaware corporation, and
their respective successors, and (ii) each other Restricted Subsidiary,
formed, created or acquired before or after the Issue Date, required to
become a Guarantor pursuant to Section 4.19.
"GUARANTOR BLOCKAGE PERIOD" see Section 12.02(a).
"GUARANTOR PAYMENT BLOCKAGE NOTICE" see Section 12.02(a).
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to any
Guarantor, at any date, (a) all Obligations of such Guarantor under the
Senior Credit Facility; (b) all Interest Rate Protection Obligations of such
Guarantor; (c) all Obligations of such Guarantor under stand-by letters of
credit; and (d) all other Indebtedness of such Guarantor for borrowed money,
including principal, premium, if any, and interest (including Post-Petition
Interest) on such Indebtedness unless the instrument under which such
Indebtedness of such Guarantor for money borrowed is Incurred expressly
provides that such Indebtedness for money borrowed is not senior or superior
in right of payment to such Guarantor's Guaranty, and all renewals,
extensions, modifications, amendments or refinancings thereof.
Notwithstanding the foregoing, Guarantor Senior Indebtedness shall not
include (a) to the extent that it may constitute Indebtedness, any Obligation
for Federal, state, local or other taxes; (b) any Indebtedness between or
among such Guarantor and any Subsidiary of the Company; (c) to the extent
that it may constitute Indebtedness, any Obligation in respect of any trade
payable Incurred for the purchase of goods or materials, or for services
obtained, in the ordinary course of business; (d) that portion of any
Indebtedness that is Incurred in violation of this Indenture; PROVIDED,
HOWEVER, that such Indebtedness shall be deemed not to have been Incurred in
violation of this Indenture for purposes of this clause (d) if (i) the
holder(s) of such Indebtedness or their representative or the Company shall
have furnished to the Trustee an opinion of independent legal counsel
unqualified in all material respects, addressed to the Trustee (which legal
counsel may, as to matters of fact, rely upon an Officers' Certificate of the
Company) to the effect that the Incurrence of such Indebtedness does not
violate the provisions of this Indenture or (ii) in the case of any
Obligations under the Senior Credit Facility, the holder(s) of such
Obligations or their agent or representative shall have received a
representation from the Company to the effect that the Incurrence of such
Indebtedness
-9-
does not violate the provisions of this Indenture; (e) Indebtedness evidenced
by such Guarantor's Guaranty; (f) Indebtedness of such Guarantor that is
expressly subordinate or junior in right of payment to any other Indebtedness
of such Guarantor; (g) to the extent that it may constitute Indebtedness, any
obligation owing under leases (other than Capitalized Lease Obligations) or
management agreements; (h) any obligation that by operation of law is
subordinate to any general unsecured obligations of such Guarantor; and (i)
any Existing Indebtedness.
"GUARANTY" see Section 11.01.
"HOLDERS" means the registered holder of any Security.
"HOLDINGS" means RBPI Holding Corporation, a Delaware
corporation, and its successors.
"IAI GLOBAL SECURITY" means a permanent global security in
registered form representing the aggregate principal amount of Securities
sold to Institutional Accredited Investors.
"INCUR" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in
respect of such Indebtedness or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "INCURRENCE," "INCURRED"
and "INCURRING" shall have meanings correlative to the foregoing).
Indebtedness of any Acquired Person or any of its Subsidiaries existing at
the time such Acquired Person becomes a Restricted Subsidiary (or is merged
into or consolidated with the Company or any Restricted Subsidiary), whether
or not such Indebtedness was Incurred in connection with, as a result of, or
in contemplation of, such Acquired Person becoming a Restricted Subsidiary
(or being merged into or consolidated with the Company or any Restricted
Subsidiary), shall be deemed Incurred at the time any such Acquired Person
becomes a Restricted Subsidiary or merges into or consolidates with the
Company or any Restricted Subsidiary.
"INDEBTEDNESS" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a) every obligation of such Person for money
borrowed; (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses; (c) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (d) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable
Incurred in the ordinary course of business and payable in accordance with
industry practices, or other accrued liabilities arising in the ordinary
course of business which are not overdue or which are being contested in good
faith); (e) every Capital Lease Obligation of such Person; (f) every net
obligation under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements of such Person; (g) every obligation of
the type referred to in clauses (a) through (f) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor, guarantor or otherwise; and (h) any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (a)
through (g) above. Indebtedness (a) shall never be calculated taking into
account any cash and cash equivalents held by such Person; (b) shall not
include obligations of any Person (x) arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of
business, provided that such obligations are extinguished within two Business
Days of their incurrence, (y) resulting from the endorsement of negotiable
instruments for
-10-
collection in the ordinary course of business and consistent with past
business practices and (z) under stand-by letters of credit to the extent
collateralized by cash or cash equivalents; (c) which provides that an amount
less than the principal amount thereof shall be due upon any declaration of
acceleration thereof shall be deemed to be Incurred or outstanding in an
amount equal to the accreted value thereof at the date of determination; (d)
shall include the liquidation preference and any mandatory redemption payment
obligations in respect of any Disqualified Equity Interests of the Company or
any Restricted Subsidiary; and (e) shall not include obligations under
performance bonds, performance guarantees, surety bonds and appeal bonds,
letters of credit or similar obligations, incurred in the ordinary course of
business.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means a nationally recognized,
accounting, appraisal, investment banking firm or consultant that is, in the
judgment of the Company's Board of Directors, qualified to perform the task
for which it has been engaged (i) which does not, and whose directors,
officers and employees or Affiliates do not, have a direct or indirect
financial interest in the Company and (ii) which, in the judgment of the
Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"INITIAL SECURITIES" means the 10 7/8% Senior Subordinated Notes
due 2004, Series A, of the Company.
"INITIAL PURCHASERS" means Chase Securities Inc. and CIBC Wood
Gundy Securities Corp.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means, with respect to
any Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding
with respect to such Person, whether voluntary or involuntary.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"INTEREST" means, with respect to the Securities, the sum of any
cash interest and any Additional Interest on the Securities.
"INTEREST PAYMENT DATE" means each semiannual interest payment
date on May 1 and November 1 of each year, commencing November 1, 1997.
"INTEREST RATE PROTECTION OBLIGATIONS" means, with respect to
any Person, the Obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"INTEREST RECORD DATE" for the interest payable on any Interest
Payment Date (except a date for payment of defaulted interest) means the
April 15 or October 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan, advance, guarantee or other extension of credit or capital
contribution to (by means of transfers of cash or other property or assets to
others or payments for property or services for the account or use of others,
or otherwise), or pur-
-11-
chase or acquisition of capital stock, bonds, notes, debentures or other
securities or evidences of Indebtedness issued by, any other Person. The
amount of any Investment shall be the original cost of such Investment, PLUS
the cost of all additions thereto, and MINUS the amount of any portion of
such Investment repaid to such Person in cash as a repayment of principal or
a return of capital, as the case may be, but without any other adjustments
for increases or decreases in value, or write-ups, write-downs or write-offs
with respect to such Investment. In determining the amount of any Investment
involving a transfer of any property or asset other than cash, such property
shall be valued at its Fair Market Value at the time of such transfer, as
determined in good faith by the Board of Directors (or comparable body) of
the Person making such transfer.
"ISSUE DATE" means the original issue date of the Securities,
May 9, 1997.
"LIEN" means any lien, mortgage, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including
any conditional sale or capital lease or other title retention agreement, any
lease in the nature thereof and any agreement to give any security interest).
"NET CASH PROCEEDS" means the aggregate proceeds in the form of
cash or Cash Equivalents received by the Company or any Restricted Subsidiary
in respect of any Asset Sale, including all cash or Cash Equivalents received
upon any sale, liquidation or other exchange of proceeds of Asset Sales
received in a form other than cash or Cash Equivalents, net of (a) the direct
costs relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof; (b) taxes paid or payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements); (c) amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale; (d) amounts deemed, in good
faith, appropriate by the Board of Directors of the Company to be provided as
a reserve, in accordance with GAAP, against any liabilities associated with
such assets which are the subject of such Asset Sale (provided that the
amount of any such reserves shall be deemed to constitute Net Cash Proceeds
at the time such reserves shall have been released or are not otherwise
required to be retained as a reserve); and (e) with respect to Asset Sales by
Restricted Subsidiaries, the portion of such cash payments attributable to
Persons holding a minority interest in such Restricted Subsidiary.
"OBLIGATIONS" means any principal, interest (including, without
limitation, Post-Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"OFFER" has the meaning set forth in the definition of "OFFER TO
PURCHASE" below.
"OFFER TO PURCHASE" means a written offer (the "OFFER") sent by
or on behalf of the Company by first-class mail, postage prepaid, to each
holder at his address appearing in the register for the Securities on the
date of the Offer offering to purchase up to the principal amount of
Securities specified in such Offer at the purchase price specified in such
Offer (as determined pursuant to this Indenture). Unless otherwise required
by applicable law, the Offer shall specify an expiration date (the
"EXPIRATION DATE") of the Offer to Purchase, which shall be not less than 20
Business Days nor more than 60 days after the date of such Offer, and a
settlement date (the "PURCHASE DATE") for purchase of Securities to occur no
later than five Business Days after the Expiration Date. The Company shall
notify the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. The Offer shall contain all the information required
by applicable law to be included therein. The Offer shall also contain
information concerning the business of the Com-
-12-
pany and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the document
required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to
in clause (i) (including a description of the events requiring the Company to
make the Offer to Purchase), and (iii) if applicable, appropriate PRO FORMA
financial information concerning the Offer to Purchase and the events
requiring the Company to make the Offer to Purchase. The Offer shall contain
all instructions and materials necessary to enable such Holders to tender
Securities pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer to
Purchase) (the "PURCHASE AMOUNT");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "PURCHASE PRICE");
(5) that the holder may tender all or any portion of the Securities
registered in the name of such holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(9) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender
such Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business
-13-
Day next preceding the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder tendered, the certificate number of the Security the
Holder tendered and a statement that such Holder is withdrawing all or a
portion of his tender;
(11) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a PRO RATA basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 principal amount or integral multiples thereof
shall be pur chased); and
(12) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in
accordance with the provisions above pertaining to any Offer.
"OFFICER" means the Chairman, any Vice Chairman, the President,
any Vice President, the Chief Financial Officer, the Treasurer, or the
Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or Assistant Secretary
of the Company complying with Sections 13.04 and 13.05.
"144A GLOBAL SECURITY" means a permanent global security in
registered form representing the aggregate principal amount of Securities
sold in reliance on Rule 144A.
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"PARTICIPANT" has the meaning set forth in Section 2.15.
"PAYING AGENT" has the meaning provided in Section 2.03.
"PAYMENT BLOCKAGE NOTICE" see Section 8.02(a).
"PAYMENT BLOCKAGE PERIOD" see Section 8.02(a).
"PERMITTED HOLDER" means (i) any of Keystone, Inc., a Texas
corporation, Oak Hill Partners, Inc., a New York corporation, Arbor
Investors, L.L.C., a California limited liability company, Group 31, Inc., a
Texas corporation, and their respective Affiliates on the Issue Date; (ii)
any of the Permitted Transferees of the Persons referred to in clause (i);
and (iii) any Person or group controlled by each or any of the Persons
referred to in clauses (i) and (ii).
-14-
"PERMITTED INDEBTEDNESS" see Section 4.04.
"PERMITTED INVESTMENTS" means (a) Cash Equivalents; (b)
Investments in prepaid expenses, negotiable instruments held for collection
and lease, utility and workers' compensation, performance and other similar
deposits; (c) loans and advances to employees made in the ordinary course of
business not to exceed $1.0 million in the aggregate at any one time
outstanding; (d) Interest Rate Protection Obligations; (e) bonds, notes,
debentures or other securities received as a result of Asset Sales permitted
under Section 4.05 not to exceed 25% of the total consideration for such
Asset Sales; (f) transactions with officers, directors and employees of the
Company or any Restricted Subsidiary entered into in ordinary course of
business (including compensation or employee benefit arrangements with any
such director or employee) and consistent with past business practices; (g)
Investments existing as of the Issue Date and any amendment, extension,
renewal or modification thereof to the extent that any such amendment,
extension, renewal or modification does not require the Company or any
Restricted Subsidiary to make any additional cash or non-cash payments or
provide additional services in connection therewith; (h) any Investment to
the extent that the consideration therefor consists of Qualified Equity
Interests of the Company; (i) any Investment consisting of a guarantee
permitted under clause (e) of the second paragraph of Section 4.04; and (j)
any Investment in ATEMCO required pursuant to the ATEMCO Joint Venture
Agreement not to exceed the Company's PRO RATA share of capital contributions
based on its ownership of Equity Interests in ATEMCO and in any event not to
exceed $100,000 in any fiscal year (provided that all other holders of Equity
Interests in ATEMCO are also simultaneously making Investments in ATEMCO
pursuant to the ATEMCO Joint Venture Agreement based on their PRO RATA share
of required capital contributions based on their ownership of Equity
Interests in ATEMCO).
"PERMITTED JUNIOR SECURITIES" means any securities of the
Company or any other Person that are (i) equity securities without special
covenants or (ii) subordinated in right of payment to all Senior Indebtedness
or Guarantor Senior Indebtedness, as the case may be, that may at the time be
outstanding, to substantially the same extent as, or to a greater extent
than, the Securities or the Guaranties, as the case may be, are subordinated
as provided in this Indenture, in any event pursuant to a court order so
providing and as to which (a) the rate of interest on such securities shall
not exceed the effective rate of interest on the Securities on the date of
this Indenture, (b) such securities shall not be entitled to the benefits of
covenants or defaults materially more beneficial to the holders of such
securities than those in effect with respect to the Securities on the date of
this Indenture and (c) such securities shall not provide for amortization
(including sinking fund and mandatory prepayment provisions) commencing prior
to the date six months following the final scheduled maturity date of the
Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be (as
modified by the plan of reorganization or readjustment pursuant to which such
securities are issued).
"PERMITTED LIENS" means (a) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary; PROVIDED, HOWEVER, that such Liens were
in existence prior to the contemplation of such merger or consolidation and
do not secure any property or assets of the Company or any Restricted
Subsidiary other than the property or assets subject to the Liens prior to
such merger or consolidation; (b) Liens imposed by law such as carriers',
warehousemen's and mechanics' Liens and other similar Liens arising in the
ordinary course of business which secure payment of obligations not more than
60 days past due or which are being contested in good faith and by
appropriate proceedings; (c) Liens existing on the Issue Date; (d) Liens
securing only the Securities; (e) Liens in favor of the Company or any
Restricted Subsidiary so long as held by the Company or any Restricted
Subsidiary; (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 conducted;
PROVIDED, HOWEVER, that any reserve or other appropriate provision as shall
be required in conformity with GAAP shall have been made therefor; (g)
easements, reservation of rights of way, restrictions and other similar
easements, licenses, re-
-15-
strictions on the use of properties, or minor imperfections of title that in
the aggregate are not material in amount and do not in any case materially
detract from the properties subject thereto or interfere with the ordinary
conduct of the business of the Company and the Restricted Subsidiaries; (h)
Liens resulting from the deposit of cash or notes in connection with
contracts, tenders or expropriation proceedings, or to secure workers'
compensation, surety or appeal bonds, costs of litigation when required by
law and public and statutory obligations or obligations under franchise
arrangements entered into in the ordinary course of business; (i) Liens
securing Indebtedness consisting of Capitalized Lease Obligations, Purchase
Money Indebtedness, mortgage f inancings, industrial revenue bonds or other
monetary obligations, in each case incurred solely for the purpose of
financing all or any part of the purchase price or cost of construction or
installation of assets used in the business of the Company or the Restricted
Subsidiaries, or repairs, additions or improvements to such assets; PROVIDED,
HOWEVER, that (I) such Liens secure Indebtedness in an amount not in excess
of the original purchase price or the original cost of any such assets or
repair, addition or improvement thereto (plus an amount equal to the
reasonable fees and expenses in connection with the incurrence of such
Indebtedness), (II) such Liens do not extend to any other assets of the
Company or the Restricted Subsidiaries (and, in the case of repair, addition
or improvements to any such assets, such Lien extends only to the assets (and
improvements thereto or thereon) repaired, added to or improved), (III) the
Incurrence of such Indebtedness is permitted by Section 4.04, and (IV) such
Liens attach within 90 days of such purchase, construction, installation,
repair, addition or improvement; (j) Liens to secure any refinancings,
renewals, extensions, modifications or replacements (for purposes of this
definition, collectively, a "REFINANCING") (or successive refinancings), in
whole or in part, of any Indebtedness secured by Liens referred to in the
clauses above so long as such Lien does not extend to any other property
(other than improvements thereto); (k) Liens securing letters of credit
entered into in the ordinary course of business and consistent with past
business practice; (l) Liens on and pledges of the Equity Interests of any
Unrestricted Subsidiary securing any Indebtedness of such Unrestricted
Subsidiary.
"PERMITTED TRANSFEREE" means, with respect to any Person: (a)
in the case of any Person who is a natural person, such individual's spouse
or children, any trust for such individual's benefit or the benefit of such
individual's spouse or children, or any corporation or partnership in which
the direct and beneficial owner of all of the Equity Interests is such Person
or such individual's spouse or children or any trust for the benefit of such
Persons; and (b) in the case of any Person who is a natural person, the
heirs, executors, administrators or personal representatives upon the death
of such Person or upon the incompetency or disability of such Person for
purposes of the protection and management of such individual's assets.
"PERSON" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PHYSICAL SECURITIES" means one or more certificated Securities
in registered form.
"POST-PETITION INTEREST" means, with respect to any Senior
Indebtedness of any Person, all interest accrued or accruing on such
Indebtedness after the commencement of any Insolvency or Liquidation
Proceeding against such Person in accordance with and at the contract rate
(including, without limitation, any rate applicable upon default) specified
in the agreement or instrument creating, evidencing or governing such
Indebtedness, whether or not, pursuant to applicable law or otherwise, the
claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding.
"PREFERRED EQUITY INTEREST," in any Person, means an Equity
Interest of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribu-
-16-
tion of assets upon any voluntary or involuntary liquidation or dissolution
of such Person, over Equity Interests of any other class in such Person.
"PRINCIPAL" of a debt security means the principal of the
security, plus, when appropriate, the premium, if any, on the security.
"PRIVATE EXCHANGE SECURITIES" have the meaning provided in
Sections 2(b) of the Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth
on the Initial Securities in the form set forth on EXHIBIT A hereto.
"PUBLIC EQUITY OFFERING" means, with respect to the Company or
Holdings, an underwritten public offering of Qualified Equity Interests of
the Company or Holdings, as the case may be, pursuant to an effective
registration statement filed under the Securities Act (excluding registration
statements filed on Form S-8).
"PUBLIC MARKET" means any time after (x) a Public Equity
Offering has been consummated and (y) at least 15% of the total issued and
outstanding Qualified Equity Interests of the Company or Holdings, as the
case may be, has been distributed by means of an effective registration
statement under the Securities Act.
"PURCHASE AMOUNT" has the meaning set forth in the definition of
"OFFER TO PURCHASE" above.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of
May 5, 1997 by and among the Company, the Guarantors and the Initial
Purchasers.
"PURCHASE DATE" has the meaning set forth in the definition of
"OFFER TO PURCHASE" above.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company
or any Restricted Subsidiary Incurred for the purpose of financing all or any
part of the purchase price or the cost of construction or improvement of any
property; PROVIDED, HOWEVER, that the aggregate principal amount of such
Indebtedness does not exceed the lesser of the Fair Market Value of such
property or such purchase price or cost, including any refinancing of such
Indebtedness that does not increase the aggregate principal amount (or
accreted amount, if less) thereof as of the date of refinancing.
"PURCHASE PRICE" has the meaning set forth in the definition of
"OFFER TO PURCHASE" above.
"QUALIFIED EQUITY INTEREST" in any Person means any Equity
Interest in such Person other than any Disqualified Equity Interest.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
-17-
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this
Indenture as set forth in the form of Security annexed hereto as EXHIBIT A.
"REGISTRAR" see Section 2.03.
"REGISTRATION" means a registered exchange offer for the
Securities by the Company or other registration of the Securities under the
Securities Act pursuant to and in accordance with the terms of the
Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of May 9, 1997 by and among the Company, the Guarantors
and the Initial Purchasers.
"RELATED BUSINESS" means those businesses in which the Company
or any of the Restricted Subsidiaries is engaged on the date of this
Indenture, or that are reasonably related or incidental thereto.
"REQUIRED FILING DATES" see Section 4.12.
"RESTRICTED INVESTMENT" means any Investment other than a
Permitted Investment.
"RESTRICTED PAYMENTS" see Section 4.06.
"RESTRICTED SECURITY" has the meaning set forth in Rule
144(a)(3) under the Securities Act; PROVIDED, HOWEVER, that the Trustee shall
be entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Security is a Restricted Security.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that
has not been designated by the Board of Directors of the Company, by a Board
Resolution of the Company delivered to the Trustee, as an Unrestricted
Subsidiary pursuant to Section 4.17. Any such designation may be revoked by
a Board Resolution of the Company delivered to the Trustee, subject to the
provisions of Section 4.17.
"REVOCATION" see Section 4.17.
"RULE 144A" means Rule 144A under the Securities Act.
"SEC" or "COMMISSION" means the Securities and Exchange
Commission.
"SECURITIES" means, collectively, the Initial Securities, the
Private Exchange Securities and the Unrestricted Securities treated as a
single class of securities, as amended or supplemented from time to time in
accordance with the terms of this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"SECURITIES AMOUNT" see Section 4.05.
"SECURITIES PORTION OF UNUTILIZED NET CASH PROCEEDS" see Section
4.05.
-18-
"SECURITY GUARANTEE" means the Form of Security Guarantee of
each Guarantor to be endorsed on each of the Securities substantially in the
form of EXHIBIT A (in the case of an Initial Security) or EXHIBIT B (in the
case of an Exchange Security) hereto.
"SENIOR CREDIT FACILITY" means the Credit Agreement, dated as of
May 9, 1997, among the Company, the lenders named therein, and The Chase
Manhattan Bank, as Administrative Agent, including any deferrals, renewals,
extensions, replacements, refinancings or refundings thereof, or amendments,
modifications or supplements thereto and any agreement providing therefor,
whether by or with the same or any other lender, creditor, group of lenders
or group of creditors, and including related notes, guarantee and note
agreements and other instruments and agreements executed in connection
therewith.
"SENIOR INDEBTEDNESS" means, at any date, (a) all Obligations of
the Company under the Senior Credit Facility; (b) all Interest Rate
Protection Obligations of the Company; (c) all Obligations of the Company
under stand-by letters of credit; and (d) all other Indebtedness of the
Company for borrowed money, including principal, premium, if any, and
interest (including Post-Petition Interest) on such Indebtedness, unless the
instrument under which such Indebtedness of the Company for money borrowed is
Incurred expressly provides that such Indebtedness for money borrowed is not
senior or superior in right of payment to the Securities, and all renewals,
extensions, modifications, amendments or refinancings thereof.
Notwithstanding the foregoing, Senior Indebtedness shall not include (a) to
the extent that it may constitute Indebtedness, any Obligation for federal,
state, local or other taxes; (b) any Indebtedness between or among the
Company and any Subsidiary of the Company; (c) to the extent that it may
constitute Indebtedness, any Obligation in respect of any trade payable
Incurred for the purchase of goods or materials, or for services obtained, in
the ordinary course of business; (d) that portion of any Indebtedness that is
Incurred in violation of this Indenture; PROVIDED, HOWEVER, that such
Indebtedness shall be deemed not to have been Incurred in violation of this
Indenture for purposes of this clause (d) if (I) the holder(s) of such
Indebtedness or their representative or the Company shall have furnished to
the Trustee an opinion of independent legal counsel, unqualified in all
material respects, addressed to the Trustee (which legal counsel may, as to
matters of fact, rely upon an Officers' Certificate of the Company) to the
effect that the Incurrence of such Indebtedness does not violate the
provisions of this Indenture or (II) in the case of any Obligations under the
Senior Credit Facility, the holder(s) of such Obligations or their agent or
representative shall have received a representation from the Company to the
effect that the Incurrence of such Indebtedness does not violate the
provisions of this Indenture; (e) Indebtedness evidenced by the Securities;
(f) Indebtedness of the Company that is expressly subordinate or junior in
right of payment to any other Indebtedness of the Company; (g) to the extent
that it may constitute Indebtedness, any obligation owing under leases (other
than Capitalized Lease Obligations) or management agreements; (h) any
obligation that by operation of law is subordinate to any general unsecured
obligations of the Company and (i) any Existing Indebtedness.
"SIGNIFICANT RESTRICTED SUBSIDIARY" means, at any date of
determination, (a) any Restricted Subsidiary that, together with its
Subsidiaries that constitute Restricted Subsidiaries (i) for the most recent
fiscal year of the Company accounted for more than 5.0% of the consolidated
revenues of the Company and the Restricted Subsidiaries or (ii) as of the end
of such fiscal year, owned more than 5.0% of the consolidated assets of the
Company and the Restricted Subsidiaries, all as set forth on the consolidated
financial statements of the Company and the Restricted Subsidiaries for such
year prepared in conformity with GAAP, and (b) any Restricted Subsidiary
which, when aggregated with all other Restricted Subsidiaries that are not
otherwise Significant Restricted Subsidiaries and as to which any event
described in clause (f), (g), (h), or (i) of Section 6.01 has occurred, would
constitute a Significant Restricted Subsidiary under clause (a) of this
definition.
-19-
"STATED MATURITY," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"SUBORDINATED INDEBTEDNESS" means, with respect to the Company
or any Guarantor, any Indebtedness of the Company or such Guarantor, as the
case may be, which is expressly subordinated in right of payment to the
Securities or such Guarantor's Guaranty, as the case may be.
"SUBSIDIARY" means, with respect to any Person, (a) any
corporation of which the outstanding Voting Equity Interests having at least
a majority of the votes entitled to be cast in the election of directors
shall at the time be owned, directly or indirectly, by such Person, or (b)
any other Person of which at least a majority of Voting Equity Interests are
at the time, directly or indirectly, owned by such first named Person.
"SURVIVING PERSON" means, with respect to any Person involved in
or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement dated as
of May 9, 1997 by and among Holdings, the Company and certain of the
Company's Subsidiaries, as amended and in effect from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended, as in effect on the date of this
Indenture (except as provided in Section 10.03) until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date
on which the Indenture is qualified under the TIA.
"TRANSACTION" means the acquisition by Reliant Partners, L.P.,
Reliant Partners II, L.P. and certain senior executive officers of the
Company of all the outstanding common stock of Holdings from the stockholder
of Holdings for aggregate consideration of $90.2 million consisting of (i)
$30.1 million in cash to be paid to such stockholders; (ii) $9.8 million of
notes to be issued by Holdings to such stockholders; (iii) the repayment of
$44.3 million of certain Indebtedness of the Company (which Indebtedness
shall not be "Existing Indebtedness" for purposes of this Indenture); and
(iv) the redemption of $6.0 million of preferred stock of Holdings.
"TRUSTEE" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.
"TRUST OFFICER" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice
president, assistant vice president, assistant secretary or any other officer
or assistant officer of the Trustee customarily performing functions similar
to those performed by the persons who at that time shall be such officers,
and also means, with respect to a particular corporate trust matter, any
other officer to whom such trust matter is referred because of his knowledge
of and familiarity with the particular subject.
"UNITED STATES GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of the United States for the payment of which the full faith and
credit of the United States is pledged.
"UNRESTRICTED SECURITIES" means one or more Securities that do
not and are not required to bear the Private Placement Legend in the form set
forth in EXHIBIT A hereto, including, without limitation, the
-20-
Exchange Securities and any Securities registered under the Securities Act
pursuant to and in accordance with the Registration Rights Agreement.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company
designated as such pursuant to Section 4.17. Any such designation may be
revoked by a Board Resolution of the Company delivered to a Trustee, subject
to the provisions of Section 4.17.
"UNUTILIZED NET CASH PROCEEDS" see Section 4.05(a).
"VOTING EQUITY INTERESTS" means Equity Interests in a
corporation or other Person with voting power under ordinary circumstances
entitling the holders thereof to elect the Board of Directors or other
governing body of such corporation or Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required
scheduled payment of principal, including payment of final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (b) the then outstanding aggregate principal amount of such
Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary all of the outstanding Voting Equity Interests (other than
directors' qualifying shares) of which are owned, directly or indirectly, by
the Company.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
-21-
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect from time to time, and any other reference in this
Indenture to "generally accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Initial Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of EXHIBIT A
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Exchange Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of EXHIBIT B
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements
(including the Security Guarantee) required by law, stock exchange rule or
usage. The Company and the Trustee shall approve the form of the Securities
and any notation, legend or endorsement (including the Security Guarantee) on
them. Each Security shall be dated the date of its issuance and shall show
the date of its authentication.
Securities offered and sold in reliance on Rule 144A and
Securities offered and sold to Institutional Accredited Investors shall be
issued initially in the form of one or more Global Securities, substantially
in the form set forth in EXHIBIT A hereto, deposited with the Trustee, as
custodian for the Depository, duly executed by the Company and authenticated
by the Trustee as hereinafter provided with the Guaranties of the Guarantors
endorsed thereon and shall bear the legend set forth in EXHIBIT C hereto.
The aggregate principal amount of the Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee,
as custodian for the Depository, as hereinafter provided.
-22-
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual
or facsimile signature.
If an Officer or an Assistant Secretary whose signature is on a
Security was an Officer or an Assistant Secretary, as the case may be, at the
time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Securities for
original issue in an aggregate principal amount not to exceed $70,000,000,
(ii) Private Exchange Securities from time to time only in exchange for a
like principal amount of Initial Securities and (iii) Unrestricted Securities
from time to time only in exchange for (A) a like principal amount of Initial
Securities or (B) a like principal amount of Private Exchange Securities, in
each case upon a written order of the Company in the form of an Officers'
Certificate. Each such written order shall specify the amount of Securities
to be authenticated and the date on which the Securities are to be
authenticated, whether the Securities are to be Initial Securities, Private
Exchange Securities or Unrestricted Securities and whether the Securities are
to be issued as Physical Securities or Global Securities and such other
information as the Trustee may reasonably request. The aggregate principal
amount of Securities outstanding at any time may not exceed $70,000,000,
except as provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote or consent) as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange (the "REGISTRAR"),
(b) Securities may be presented or surrendered for payment (the "PAYING
AGENT") and (c) notices and demands in respect of the Securities and this
Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company, upon notice to
the Trustee, may appoint one or more co-Registrars and one or more additional
Paying Agents. The term "PAYING AGENT" includes any additional Paying Agent.
Except as provided herein, the Company or any Guarantor may act as Paying
Agent, Registrar or co-Registrar.
-23-
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has
been appointed.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, or interest on, the Securities, and shall notify
the Trustee of any Default by the Company in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held
by it to the Trustee and account for any assets disbursed and the Trustee may
at any time during the continuance of any payment Default, upon written
request to a Paying Agent, require such Paying Agent to distribute all assets
held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by
the Company to the Paying Agent (if other than the Company), the Paying Agent
shall have no further liability for such assets. If the Company, any
Guarantor or any of their respective Affiliates acts as Paying Agent, it
shall, on or before each due date of the principal of or interest on the
Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee before each Interest Record Date and at such other times as
the Trustee may request in writing a list as of such date and in such form as
the Trustee may reasonably require of the names and addresses of Holders,
which list may be conclusively relied upon by the Trustee.
SECTION 2.06. TRANSFER AND EXCHANGE.
Subject to the provisions of Sections 2.15 and 2.16, when
Securities are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Securities or to exchange such Securities for
an equal principal amount of Securities of other authorized denominations of
the same series, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are
met; PROVIDED, HOWEVER, that the Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities at
the Registrar's or co-Registrar's written request. No service charge shall be
made for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or
-24-
other governmental charge payable upon exchanges or transfers pursuant to
Section 2.02, 2.10, 3.06, 4.05, 4.14, or 10.05). The Registrar or
co-Registrar shall not be required to register the transfer or exchange of
any Security (i) during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of Securities and ending at the
close of business on the day of such mailing and (ii) selected for redemption
in whole or in part pursuant to Article Three hereof, except the unredeemed
portion of any Security being redeemed in part.
Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee and any Agent of the Company shall
treat the person in whose name the Security is registered as the owner
thereof for all purposes whether or not the Security shall be overdue, and
neither the Company, the Trustee nor any such Agent shall be affected by
notice to the contrary. Any Holder of a beneficial interest in a Global
Security shall, by acceptance of such beneficial interest in a Global
Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Depository (or its agent), and that ownership of a beneficial interest in a
Global Security shall be required to be reflected in a book entry.
SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security if the Trustee's requirements for replacement of
Securities are met. If required by the Company or the Trustee, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment
of both the Company and the Trustee, to protect the Company, the Trustee and
any Agent from any loss which any of them may suffer if a Security is
replaced The Company may charge such Holder for its reasonable out-of-pocket
expenses in replacing a Security, including reasonable fees and expenses of
counsel.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.08 as
not outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced
Security is held by a BONA FIDE purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.07.
If on a Redemption Date, Purchase Date or the Final Maturity
Date the Paying Agent holds money sufficient to pay all of the principal and
interest due on the Securities payable on that date, and is not prohibited
from paying such money to the Holders pursuant to the terms of this
Indenture, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
-25-
SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, the Guarantors or any of their respective
Affiliates shall be disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities that a Trust Officer of the Trustee
actually knows are so owned shall be disregarded.
The Company shall notify the Trustee, in writing, when it, any
Guarantor or any of its Affiliates repurchases or otherwise acquires
Securities, of the aggregate principal amount of such Securities so
repurchased or otherwise acquired.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon
receipt of a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of temporary
Securities to be authenticated and the date on which the temporary Securities
are to be authenticated.
Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate upon receipt of a
written order of the Company pursuant to Section 2.02 definitive Securities
in exchange for temporary Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel, and at the written direction of the
Company, dispose of and deliver evidence of such disposal of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to
Section 2.07, the Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation. If the
Company or any Guarantor shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
The Company shall pay interest on overdue principal from time to
time on demand at the rate of interest then borne by the Securities. The
Company shall, to the extent lawful, pay interest on overdue installments of
interest (without regard to any applicable grace periods) from time to time
on demand at the rate of interest then borne by the Securities.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest to the Persons who are Holders
on a subsequent special record date, which date shall be the fifteenth day
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall
mail to each Holder,
-26-
with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior
to the expiration of the 30-day period set forth in Section 6.01(b) shall be
paid to Holders as of the Interest Record Date for the Interest Payment Date
for which interest has not been paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities will use a "CUSIP" number
and the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED , HOWEVER, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed
on the Securities. The Company shall promptly notify the Trustee of any
changes in CUSIP numbers.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 10:00 a.m. New York City time on each Interest Payment
Date, Redemption Date, Purchase Date and the Final Maturity Date, the Company
shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date, Purchase Date or Final Maturity Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Redemption Date, Purchase Date or
Final Maturity Date, as the case may be.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in EXHIBIT C.
Members of, or participants in, the Depository ("PARTICIPANTS")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or
their respective nominees. Interests of beneficial owners in the Global
Securities may be transferred or exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the provisions
of Section 2.16; PROVIDED, HOWEVER, that Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial
interests in Global Securities if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for any Global
Security and a successor Depository is not appointed by the Company within 90
days of such notice or (ii) an Event of De-
-27-
fault has occurred and is continuing and the Registrar has received a request
from the Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as
an entirety to beneficial owners pursuant to paragraph (b) of this Section
2.15, the Global Securities shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall upon
written instructions from the Company authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (c) of this Section 2.15 shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) TRANSFER AND EXCHANGE OF PHYSICAL SECURITIES. When
Physical Securities are presented to the Registrar or co-Registrar with a
request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal
amount of Physical Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if the requirements under this Indenture as set forth
in this Section 2.16 for such transactions are met; PROVIDED, HOWEVER, that
the Physical Securities presented or surrendered for Registration of transfer
or exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(II) in the case of Physical Securities the offer and sale of
which have not been registered under the Securities Act, such Physical
Securities shall be accompanied, in the sole discretion of the Company,
by the following additional information and documents, as applicable:
(A) if such Physical Security is being delivered to the
Registrar or co-Registrar by a Holder for Registration in
the name of such Holder, without transfer, a certification
from such Holder to that effect (substantially in the form
of EXHIBIT D hereto); or
(B) if such Physical Security is being transferred to a QIB in
accordance with Rule 144A, a certification to that effect
(substantially in the form of EXHIBIT D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the form of
EXHIBIT D
-28-
hereto) and a transferee letter of representation
substantially in the form of EXHIBIT E hereto and, at the
option of the Company, an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(D) if such Physical Security is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a
certification to that effect (substantially in the form of
EXHIBIT D hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
(E) if such Physical Security is being transferred in reliance
on another exemption from the registration requirements of
the Securities Act, a certification to that effect
(substantially in the form of EXHIBIT D hereto) and, at the
option of the Company, an Opinion of Counsel reasonably
acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A PHYSICAL SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Physical Security the offer and
sale of which has not been registered under the Securities Act may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Registrar or co-Registrar of a Physical Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to
the Registrar or co-Registrar, together with:
(A) certification, substantially in the form of EXHIBIT D
hereto, that such Physical Security is being transferred
(I) to a QIB or (II) to an Accredited Investor and, with
respect to (II), at the option of the Company, an Opinion
of Counsel reasonably acceptable to the Company to the
effect that such transfer is in compliance with the
Securities Act; and
(B) written instructions directing the Registrar or
co-Registrar to make, or to direct the Depository to make,
an endorsement on the applicable Global Security to reflect
an increase in the aggregate amount of the Securities
represented by the Global Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar
or co-Registrar, the principal amount of Securities represented by the
applicable Global Security to be increased accordingly. If no 144A Global
Security or IAI Global Security, as the case may be, is then outstanding, the
Company shall, unless either of the events in the proviso to Section 2.15(b)
have occurred and are continuing, issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate
such a Global Security in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depository therefor. Upon receipt by the Registrar or Co-Registrar of
written instructions, or such other instruction as is customary for the
Depository, from the Depository or its nominee, requesting the Registration
of transfer of an interest in a
-29-
144A Global Security or an IAI Global Security, as the case may be, to
another type of Global Security, together with the applicable Global
Securities (or, if the applicable type of Global Security required to
represent the interest as requested to be transferred is not then
outstanding, only the Global Security representing the interest being
transferred), the Registrar or Co-Registrar shall cancel such Global
Securities (or Global Security) and the Company shall issue and the Trustee
shall, upon written instructions from the Company in accordance with Section
2.02, authenticate new Global Securities of the types so cancelled (or the
type so cancelled and applicable type required to represent the interest as
requested to be transferred) reflecting the applicable increase and decrease
of the principal amount of Securities represented by such types of Global
Securities, giving effect to such transfer. If the applicable type of Global
Security required to represent the interest as requested to be transferred is
not outstanding at the time of such request, the Company shall issue and the
Trustee shall, upon written instructions from the Company in accordance with
Section 2.02, authenticate a new Global Security of such type in principal
amount equal to the principal amount of the interest requested to be
transferred.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR
A PHYSICAL SECURITY.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Physical Security; PROVIDED, HOWEVER, that prior to the Registration, a
transferee that is a QIB or Institutional Accredited Investor may not
exchange a beneficial interest in Global Security for a Physical
Security. Upon receipt by the Registrar or co-Registrar of written
instructions, or such other form of instructions as is customary for the
Depository, from the Depository or its nominee on behalf of any Person
(subject to the previous sentence) having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or
such other form of instructions as is customary for the Depository or the
Person designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in Securities the offer and
sale of which have not been registered under the Securities Act, the
following additional information and documents:
(A) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery of
a certification to that effect (substantially in the form
of EXHIBIT D hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
(B) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (substantially in the form of EXHIBIT D hereto) and,
at the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Registrar or co-Registrar, the aggregate principal amount of the
applicable Global Security to be reduced and, following such reduction,
the Company will execute and, upon receipt of an authentication order in
the form of an Officers' Certificate in accordance with Section 2.02,
the Trustee will authenticate and deliver to the transferee a Physical
Security in the appropriate principal amount.
(ii) Securities issued in exchange for a beneficial interest in
a Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the
-30-
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar or co-Registrar
in writing. The Registrar or co-Registrar shall deliver such Physical
Securities to the Persons in whose names such Physical Securities are so
registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL
SECURITIES. Notwithstanding any other provisions of this Indenture, a Global
Security may not be transferred as a whole except by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver only Securities that bear the Private Placement
Legend unless, and the Trustee is hereby authorized to deliver Securities
without the Private Placement Legend if, (i) there is delivered to the
Trustee an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions
of the Securities Act;(ii) such Security has been sold pursuant to an
effective registration statement under the Securities Act (including pursuant
to a Registration); or (iii) the date of such transfer, exchange or
replacement is two years after the later of (x) the Issue Date and (y) the
last date that the Company or any affiliate (as defined in Rule 144 under the
Securities Act) of the Company was the owner of such Securities (or any
predecessor thereto).
(g) GENERAL. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Participants or beneficial owners of interest in any Global Security)
other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this
Section 2.16. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar
-31-
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company wants to redeem Securities pursuant to paragraph
5, 6 or 7 of the Securities at the applicable redemption price set forth
thereon, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. The Company shall give
such notice to the Trustee at least 60 days before the Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in writing),
together with an Officers' Certificate stating that such redemption will
comply with the conditions contained herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant
to paragraph 5 of the Securities, the Trustee shall select the Securities to
be redeemed in compliance with the requirements of the national securities
exchange, if any, on which the Securities are listed or, if the Securities
are not then listed on a national securities exchange, on a PRO RATA basis,
by lot or in such other manner as the Trustee shall deem fair and
appropriate. Selection of the Securities to be redeemed pursuant to
paragraph 6 of the Securities shall be made by the Trustee only on a PRO RATA
basis or on as nearly a PRO RATA basis as is practicable (subject to the
procedures of the Depository) based on the aggregate principal amount of
Securities held by each Holder. The Trustee shall make the selection from the
Securities then outstanding, subject to redemption and not previously called
for redemption.
The Trustee may select for redemption pursuant to paragraph 5 or
6 of the Securities portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities
and portions of them the Trustee so selects shall be in amounts of $1,000
principal amount or integral multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail to
each Holder whose Securities are to be redeemed at such Holder's registered
address; PROVIDED, HOWEVER, that notice of a redemption pursuant to paragraph
6 of the Securities shall be mailed to each Holder whose Securities are to be
redeemed no later than 60 days after the date of the Closing of the relevant
Public Equity Offering of Holdings or the Company.
Each notice of redemption shall identify the Securities to be
redeemed (including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
-32-
(3) the name and address of the Paying Agent to which the
Securities are to be surrendered for redemption;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the redemption price upon surrender to
the Paying Agent; and
(6) in the case of any redemption pursuant to paragraph 5 or 6
of the Securities, if any Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed and
that, after the Redemption Date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed
portion thereof will be issued.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the
Company's expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the
redemption price. Upon surrender to the Paying Agent, such Securities shall
be paid at the redemption price, plus accrued interest thereon, if any, to
the Redemption Date, but interest installments whose maturity is on or prior
to such Redemption Date shall be payable to the Holders of record at the
close of business on the relevant Interest Record Date.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day before the Redemption Date, the
Company shall deposit with the Paying Agent (or if the Company is its own
Paying Agent, shall, on or before the Redemption Date, segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date other than Securities
or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Company to deposit with the Paying Agent money sufficient
to pay the redemption price thereof, the principal and accrued and unpaid
interest, if any, thereon shall, until paid or duly provided for, bear
interest as provided in Sections 2.12 and 4.01 with respect to any payment
default.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
-33-
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities and the Registration
Rights Agreement. An installment of principal or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the Company,
a Guarantor or any of their respective Affiliates) holds on that date money
designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders of the Securities pursuant
to the terms of this Indenture.
The Company shall pay cash interest on overdue principal at the
same rate per annum borne by the Securities. The Company shall pay cash
interest on overdue installments of interest at the same rate per annum borne
by the Securities, to the extent lawful, as provided in Section 2.12.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City
of New York, the office or agency required under Section 2.03. The Company
shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 13. The Company hereby initially designates the Trustee at
its address set forth in Section 13.02 as its office or agency in The Borough
of Manhattan, The City of New York, for such purposes.
SECTION 4.03. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, conduct any business or
enter into any transaction (or series of related transactions) with or for
the benefit of any of their respective Affiliates or any officer, director or
employee of the Company or any Restricted Subsidiary (each an "AFFILIATE
TRANSACTION"), unless (i) such Affiliate Transaction is on terms which are no
less favorable to the Company or such Restricted Subsidiary, as the case may
be, than would be available in a comparable transaction with an unaffiliated
third party, (ii) if such Affiliate Transaction (or series of related
Affiliate Transactions) involves aggregate payments or other consideration
having a Fair Market Value in excess of $1.0 million, such Affiliate
Transaction is in writing and a majority of the disinterested members of the
Board of Directors of the Company shall have approved such Affiliate
Transaction and determined that such Affiliate Transaction complies with the
foregoing provisions and (iii) if such Affiliate Transaction (or series of
related Affiliate Transactions) involves aggregate payments or other
consideration having a Fair Market Value in excess of $5.0 million, the
Company shall have obtained a written opinion from an Independent Financial
Advisor (filed with the Trustee) stating that the terms of such Affiliate
Transaction are fair, from a financial point of view, to the Company or the
Restricted Subsidiary involved in such Affiliate Transaction, as the case may
be.
Notwithstanding the foregoing, the restrictions set forth in
this Section 4.03 shall not apply to (i) transactions with or among the
Company and any Wholly Owned Restricted Subsidiary or between or among Wholly
Owned Restricted Subsidiaries; (ii) customary directors' fees,
indemnification and similar ar-
-34-
rangements, consulting fees, employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of the Company or any
Restricted Subsidiary entered into in the ordinary course of business
(including customary benefits thereunder) and payments under any
indemnification arrangements permitted by applicable law; (iii) any
transactions undertaken pursuant to any contractual obligations in existence
on the Issue Date (as in effect on the Issue Date); (iv) the issue and sale
by the Company to its stockholders of Qualified Equity Interests; (v) any
Restricted Payments made in compliance with Section 4.06; (vi) loans and
advances to officers, directors and employees of the Company or any
Restricted Subsidiary for travel, entertainment, moving and other relocation
expenses, in each case made in the ordinary course of business; (vii) the
Incurrence of intercompany Indebtedness permitted pursuant to clause (d) of
the second paragraph of Section 4.04; (viii) the pledge of Equity Interests
of Unrestricted Subsidiaries to support the Indebtedness thereof; (ix) the
Tax Sharing Agreement, as in effect on the Issue Date; and (x) any
transaction with the Xxxxxx Group pursuant to the Consulting Agreement, as in
effect on the Issue Date, not to exceed $2.0 million in any fiscal year
(exclusive of reimbursement of expenses).
SECTION 4.04. LIMITATION ON INDEBTEDNESS.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any Disqualified Equity Interests,
except for Permitted Indebtedness; PROVIDED, HOWEVER, that the Company and
any Restricted Subsidiary that is a Guarantor may Incur Indebtedness and the
Company may issue Disqualified Equity Interests if, at the time of and
immediately after giving PRO FORMA effect to such Incurrence of Indebtedness
or issuance of Disqualified Equity Interests and the application of the
proceeds therefrom, the Consolidated Coverage Ratio would be greater than 2.0
to 1.0.
The foregoing limitations will not apply to the Incurrence by
the Company or any Restricted Subsidiary that is a Guarantor of any of the
following (collectively, "PERMITTED INDEBTEDNESS"), each of which shall be
given independent effect:
(a) Indebtedness under the Securities;
(b) Existing Indebtedness;
(c) Indebtedness pursuant to the Senior Credit Facility in an
aggregate principal amount at any one time outstanding not to exceed the sum
of (A) the greater of (i) $25.0 million and (ii) the sum of (a) 85% of the
Net Amount of Eligible Receivables (as defined in the Senior Credit Facility
as in effect on the Issue Date whether or not the Senior Credit Facility is
in effect on the date of determination), PLUS (b) 50% of Eligible Inventory
(as defined in the Senior Credit Facility as in effect on the Issue Date
whether or not the Senior Credit Facility is in effect on the date of
determination), PLUS (B) any amounts outstanding under the Senior Credit
Facility that utilize subparagraph (i) of this paragraph of this Section 4.04;
(d) Indebtedness of any Restricted Subsidiary owed to and held
by the Company or any Wholly Owned Restricted Subsidiary and Indebtedness of
the Company owed to and held by any Wholly Owned Restricted Subsidiary which
is unsecured and subordinated in right of payment to the payment and
performance of the Company's obligations under any Senior Indebtedness, this
Indenture and the Securities; PROVIDED, HOWEVER, that an Incurrence of
Indebtedness that is not permitted by this clause (d) shall be deemed to have
occurred upon (i) any sale or other disposition of any Indebtedness of the
Company or any Restricted Subsidiary referred to in this clause (d) to a
Person (other than the Company or any Wholly Owned Restricted
-35-
Subsidiary), (ii) any sale or other disposition of Equity Interests of any
Wholly Owned Restricted Subsidiary which holds Indebtedness of the Company or
another Restricted Subsidiary such that such Wholly Owned Restricted
Subsidiary ceases to be a Wholly Owned Restricted Subsidiary, or (iii) the
designation of a Wholly Owned Restricted Subsidiary which holds Indebtedness
of the Company or any other Restricted Subsidiary as an Unrestricted
Subsidiary;
(e) the Guaranties and guarantees by any Guarantor of
Indebtedness of the Company; PROVIDED, HOWEVER, that if such guarantee is of
Subordinated Indebtedness, then the Guaranty of such Guarantor shall be
senior to such Guarantor's guarantee of Subordinated Indebtedness;
(f) Interest Rate Protection Obligations of the Company
relating to Indebtedness of the Company (which Indebtedness (i) bears
interest at fluctuating interest rates and (ii) is otherwise permitted to be
Incurred under this Section 4.04); PROVIDED, HOWEVER, that the notional
principal amount of such Interest Rate Protection Obligations does not exceed
the principal amount of the Indebtedness to which such Interest Rate
Protection Obligations relate;
(g) Purchase Money Indebtedness and Capitalized Lease
Obligations which do not exceed $10.0 million in the aggregate at any one
time outstanding;
(h) Indebtedness or Disqualified Equity Interests to the extent
representing a replacement, renewal, refinancing or extension (collectively,
a "REFINANCING") of outstanding Indebtedness or Disqualified Equity Interests
Incurred in compliance with the Consolidated Coverage Ratio of the first
paragraph of this Section 4.04 or clause (a) or (b) of this paragraph of this
Section 4.04; PROVIDED, HOWEVER, that (i) any such refinancing shall not
exceed the sum of the principal amount (or accreted amount (determined in
accordance with GAAP), if less) of the Indebtedness or Disqualified Equity
Interests being refinanced, PLUS the amount of accrued interest or dividends
thereon, PLUS the amount of any reasonably determined prepayment premium
necessary to accomplish such refinancing and such reasonable fees and
expenses incurred in connection therewith; (ii) Indebtedness representing a
refinancing of Indebtedness other than Senior Indebtedness shall have a
Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of the Indebtedness being refinanced; (iii)
Indebtedness that is PARI PASSU with the Securities may only be refinanced
with Indebtedness that is made PARI PASSU with or subordinate in right of
payment to the Securities and Subordinated Indebtedness or Disqualified
Equity Interests may only be refinanced with Subordinated Indebtedness or
Disqualified Equity Interests; and (iv) no Restricted Subsidiary that is not
a Guarantor may Incur Indebtedness to refinance Indebtedness of the Company;
and
(i) in addition to the items referred to in clauses (a) through
(h) above, Indebtedness of the Company (including any Indebtedness under the
Senior Credit Facility that utilizes this subparagraph (i)) having an
aggregate principal amount not to exceed $15.0 million at any time
outstanding.
SECTION 4.05. DISPOSITION OF PROCEEDS OF ASSET SALES.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, make any Asset Sale, unless
(i) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets sold or otherwise disposed of and (ii) at least
75% of such consideration consists of (A) cash or Cash Equivalents, (B)
properties and capital assets to be owned by the Company or any Restricted
Subsidiary and to be used in a Related Business, or (C) Equity Interests in
any Person which thereby becomes a Wholly Owned Restricted Subsidiary whose
assets consist primarily of properties and capital assets used in a Related
Business.
-36-
The amount of any (i) Indebtedness (other than any Subordinated Indebtedness)
of the Company or any Restricted Subsidiary that is actually assumed by the
transferee in such Asset Sale and from which the Company and the Restricted
Subsidiaries are fully released shall be deemed to be cash for purposes of
determining the percentage of cash consideration received by the Company or
the Restricted Subsidiaries and (ii) notes or other similar obligations
received by the Company or the Restricted Subsidiaries from such transferee
that are immediately converted, sold or exchanged (or are converted, sold or
exchanged within thirty days of the related Asset Sale) by the Company or the
Restricted Subsidiaries into cash shall be deemed to be cash, in an amount
equal to the net cash proceeds realized upon such conversion, sale or
exchange for purposes of determining the percentage of cash consideration
received by the Company or the Restricted Subsidiaries.
The Company or such Restricted Subsidiary, as the case may be,
may (i) apply the Net Cash Proceeds of any Asset Sale within 365 days of
receipt thereof to repay Senior Indebtedness and permanently reduce any
related commitment, or (ii) commit in writing to acquire, construct or
improve properties and capital assets to be owned by the Company or any
Restricted Subsidiary and to be used in a Related Business and so apply such
Net Cash Proceeds within 365 days after the receipt thereof.
To the extent all or part of the Net Cash Proceeds of any Asset
Sale are not applied within 365 days of such Asset Sale as described in
clause (i) or (ii) of the immediately preceding paragraph (such Net Cash
Proceeds, the "UNUTILIZED NET CASH PROCEEDS"), the Company shall, within 20
days after such 365th day, make an Offer to Purchase all outstanding
Securities up to a maximum principal amount (expressed as a multiple of
$1,000) of Securities equal to such Unutilized Net Cash Proceeds. Such Offer
to Purchase shall be made at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the Purchase Date; PROVIDED, HOWEVER, that the Offer to Purchase may be
deferred until there are aggregate Unutilized Net Cash Proceeds equal to or
in excess of $5.0 million, at which time the entire amount of such Unutilized
Net Cash Proceeds, and not just the amount in excess of $5.0 million, shall
be applied as required pursuant to this paragraph. Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount and subject to any pro ration among tendering Holders
as described in paragraph (b) below.
(b) With respect to any Offer to Purchase effected pursuant to
this Section 4.05, among the Securities, to the extent the aggregate
principal amount of Securities tendered pursuant to such Offer to Purchase
exceeds the Unutilized Net Cash Proceeds to be applied to the repurchase
thereof, such Securities shall be purchased PRO RATA based on the aggregate
principal amount of such Securities tendered by each Holder. To the extent
the Unutilized Net Cash Proceeds exceed the aggregate amount of Securities
tendered by the Holders of the Securities pursuant to such Offer to Purchase,
the Company may retain and utilize any portion of the Unutilized Net Cash
Proceeds not applied to repurchase the Securities for any purpose consistent
with the other terms of this Indenture.
(c) On or prior to the Purchase Date specified in the Offer to
Purchase, the Company shall (i) subject to paragraph (b) of this Section 4.05,
accept for payment all Securities validly tendered pursuant to the Offer, (ii)
deposit with the Paying Agent or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.04, money sufficient
to pay the Purchase Price of all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee for cancellation all
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent (or the Company, if so acting) shall promptly mail or deliver to Holders
of Securities so accepted, payment in an amount equal to the Purchase Price for
such Securities, and the Trustee shall promptly authenticate and mail or deliver
to each Holder of Securities a new Security or Se-
-37-
curities equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for
payment shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Offer on or
as soon as practicable after the Purchase Date.
(d) In the event that the Company makes an Offer to Purchase
the Securities, the Company shall comply with any applicable securities laws
and regulations, including any applicable requirements of Section 14(e) of,
and Rule 14e-1 under, the Exchange Act, and any violation of the provisions
of this Indenture relating to such Offer to Purchase occurring as a result of
such compliance shall not be deemed a Default or an Event of Default.
SECTION 4.06. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or any other distribution on
any Equity Interests of the Company or any Restricted Subsidiary or
make any payment or distribution to the direct or indirect holders (in
their capacities as such) of Equity Interests of the Company or any
Restricted Subsidiary (other than any dividends, distributions and
payments made to the Company or any Restricted Subsidiary and dividends
or distributions payable to any Person solely in Qualified Equity
Interests of the Company or in options, warrants or other rights to
purchase Qualified Equity Interests of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company or any Restricted Subsidiary (other
than any such Equity Interests owned by the Company or any Restricted
Subsidiary);
(iii) purchase, redeem, defease or retire for value, or make
any principal payment on, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated
Indebtedness (other than any Subordinated Indebtedness held by the
Company or any Wholly Owned Restricted Subsidiary); or
(iv) make any Investment (other than Permitted Investments) in
any Person (other than in the Company, any Restricted Subsidiary or a
Person that becomes a Restricted Subsidiary, or is merged with or into
or consolidated with the Company or a Restricted Subsidiary (provided
the Company or a Restricted Subsidiary is the survivor) as a result of
or in connection with such Investment);
(such payments or any other actions (other than any exception thereto)
described in (i), (ii), (iii) or (iv), each a "RESTRICTED PAYMENT"), unless
(a) no Default or Event of Default shall have occurred and be
continuing at the time or immediately after giving effect to such Restricted
Payment;
(b) immediately after giving effect to such Restricted Payment,
the Company would be able to Incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under the Consolidated Coverage Ratio of the
first paragraph of Section 4.04; and
(c) immediately after giving effect to such Restricted Payment,
the aggregate amount of all Restricted Payments declared or made on or after
the Issue Date does not exceed an amount equal to the sum
-38-
of (1) 50% of cumulative Consolidated Net Income determined for the period
(taken as one period) from the beginning of the first fiscal quarter
commencing after the Issue Date and ending on the last day of the most recent
fiscal quarter immediately preceding the date of such Restricted Payment for
which consolidated financial information of the Company is available (or if
such cumulative Consolidated Net Income shall be a loss, minus 100% of such
loss), PLUS (2) the aggregate net cash proceeds received by the Company
either (x) as capital contributions to the Company after the Issue Date or
(y) from the issue and sale (other than to a Restricted Subsidiary) of its
Qualified Equity Interests after the Issue Date (excluding the net proceeds
from any issuance and sale of Qualified Equity Interests financed, directly
or indirectly, using funds borrowed from the Company or any Restricted
Subsidiary until and to the extent such borrowing is repaid), PLUS, (3) the
principal amount (or accreted amount (determined in accordance with GAAP), if
less) of any Indebtedness of the Company or any Restricted Subsidiary
Incurred after the Issue Date which has been converted into or exchanged for
Qualified Equity Interests of the Company, PLUS (4) in the case of the
disposition or repayment of any Investment constituting a Restricted Payment
made after the Issue Date, an amount (to the extent not included in the
computation of Consolidated Net Income) equal to the lesser of: (x) the
return of capital with respect to such Investment and (y) the amount of such
Investment which was treated as a Restricted Payment, in either case, less
the cost of the disposition of such Investment and net of taxes, PLUS (5) so
long as the Designation thereof was treated as a Restricted Payment made
after the Issue Date, with respect to any Unrestricted Subsidiary that has
been redesignated as a Restricted Subsidiary after the Issue Date in
accordance with Section 4.17, the Company's proportionate interest in the net
worth of such Subsidiary in an amount equal to the excess of (x) the total
assets of such Subsidiary, valued on an aggregate basis at Fair Market Value,
over (y) the total liabilities of such Subsidiary, determined in accordance
with GAAP (and provided that such amount shall not in any case exceed the
Designation Amount with respect to such Restricted Subsidiary upon its
Designation), PLUS (6) (to the extent not included in the computation of
Consolidated Net Income) the amount of cash dividends or cash distributions
(other than to pay taxes) received from any Unrestricted Subsidiary since the
Issue Date, MINUS (7) the greater of (x) $0 and (y) the Designation Amount
(measured as of the date of Designation) with respect to any Subsidiary of
the Company which has been designated as an Unrestricted Subsidiary after the
Issue Date in accordance with Section 4.17.
The foregoing provisions will not prevent (i) the payment of any
dividend or distribution on, or redemption of, Equity Interests within 60
days after the date of declaration of such dividend or distribution or the
giving of such formal notice of such redemption, if at the date of such
declaration or giving of such formal notice such payment or redemption would
comply with the provisions of this Indenture; (ii) the purchase, redemption,
retirement or other acquisition of any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of the substantially concurrent
issue and sale (other than to a Restricted Subsidiary) of, Qualified Equity
Interests of the Company; PROVIDED, HOWEVER, that any such net cash proceeds
and the value of any Qualified Equity Interests issued in exchange for such
retired Equity Interests are excluded from clause (c)(2) of the preceding
paragraph (and were not included therein at any time); (iii) the purchase,
redemption, retirement, defeasance or other acquisition of Subordinated
Indebtedness, or any other payment thereon, made in exchange for, or out of
the net cash proceeds of, a substantially concurrent issue and sale (other
than to a Restricted Subsidiary) of (x) Qualified Equity Interests of the
Company; PROVIDED, HOWEVER, that any such net cash proceeds and the value of
any Qualified Equity Interests issued in exchange for Subordinated
Indebtedness are excluded from clauses (c)(2) and (c)(3) of the preceding
paragraph (and were not included therein at any time) or (y) other
Subordinated Indebtedness having no stated maturity for the payment of
principal thereof prior to the Final Maturity Date; (iv) any Investment to
the extent that the consideration therefor consists of the net cash proceeds
of the substantially concurrent issue and sale (other than to a Restricted
Subsidiary) of Qualified Equity Interests of the Company; PROVIDED; HOWEVER,
that any such net cash proceeds are excluded from clause (c)(2) of the
preceding paragraph (and were not included therein at any time); (v) the
purchase, redemption or other acquisition, cancellation or retirement for
value of Equity Inter-
-39-
ests, or options, warrants, equity appreciation rights or other rights to
purchase or acquire Qualified Equity Interests, of the Company or any
Restricted Subsidiary, or similar securities, held by officers or employees
or former officers or employees of the Company or any Restricted Subsidiary
(or their estates or beneficiaries under their estates), upon death,
disability, retirement or termination of employment, or dividends by the
Company to Holdings to effect the same in respect of its Qualified Equity
Interests, not to exceed $3.0 million in the aggregate since the Issue Date;
(vi) Restricted Payments not to exceed $2.0 million in the aggregate since
the Issue Date; (vii) payments to Holdings to pay general and administrative
expenses of Holdings not to exceed $500,000 in any fiscal year; or (viii)
dividends by the Company to Holdings in an amount not to exceed $16.1 million
in the aggregate since the Issue Date to effect the Transaction; PROVIDED,
HOWEVER, that in the case of each of clauses (ii), (iii), (iv), (v), (vi) and
(vii) no Default or Event of Default shall have occurred and be continuing or
would arise therefrom.
In determining the amount of Restricted Payments permissible
under this covenant, amounts expended pursuant to clauses (i), (v), (vi) and
(vii) of the immediately preceding paragraph shall be included as Restricted
Payments and amounts expended pursuant to clauses (ii), (iii), (iv) and
(viii) shall be excluded. The amount of any non-cash Restricted Payment
shall be deemed to be equal to the Fair Market Value thereof at the date of
the making of such Restricted Payment.
SECTION 4.07. CORPORATE EXISTENCE.
Subject to Article Five, the Company shall do or shall cause to
be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or other existence of
each Restricted Subsidiary in accordance with the respective organizational
documents of each such Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and the Restricted
Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise, or the corporate existence of any
Restricted Subsidiary, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and the Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, adverse in any
material respect to the Holders; PROVIDED, FURTHER, HOWEVER, that a
determination of the Board of Directors of the Company shall not be required
in the event of a merger of one or more Wholly Owned Restricted Subsidiaries
of the Company with or into another Wholly Owned Restricted Subsidiary of the
Company or another Person, if the surviving Person is a Wholly Owned
Restricted Subsidiary of the Company organized under the laws of the United
States or a State thereof or of the District of Columbia.
SECTION 4.08. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or
any Restricted Subsidiary or upon the income, profits or property of the
Company or any Restricted Subsidiary and (2) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law become a
material liability, or Lien upon the property, of the Company or any
Restricted Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
provision has been made.
-40-
SECTION 4.09. NOTICE OF DEFAULTS.
(a) In the event that any Indebtedness of the Company or any of
its Subsidiaries is declared due and payable before its maturity because of
the occurrence of any default (or any event which, with notice or lapse of
time, or both, would constitute such a default) under such Indebtedness, the
Company shall promptly give written notice to the Trustee of such
declaration, the status of such default or event and what action the Company
is taking or proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the
Company shall promptly deliver an Officers' Certificate to the Trustee
specifying the Default or Event of Default.
SECTION 4.10. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall cause all material properties owned by or
leased to it or any Restricted Subsidiary and used or useful in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section 4.10 shall prevent the Company or any
Restricted Subsidiary from discontinuing the use, operation or maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or of the board of
directors of the Restricted Subsidiary concerned, or of an officer (or other
agent employed by the Company or of any Restricted Subsidiary) of the Company
or such Restricted Subsidiary having managerial responsibility for any such
property, desirable in the conduct of the business of the Company or any
Restricted Subsidiary, and if such discontinuance or disposal is not adverse in
any material respect to the Holders.
(b) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such
risks and in such amounts, and with such deductibles, retentions,
self-insured amounts and co-insurance provisions, as are customarily carried
by similar businesses of similar size, including property and casualty loss,
and workers' compensation insurance.
SECTION 4.11. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 45 days after
the end of each of the first three fiscal quarters of the Company and within
90 days after the close of each fiscal year a certificate signed by the
principal executive officer, principal financial officer or principal
accounting officer stating that a review of the activities of the Company has
been made under the supervision of the signing officers with a view to
determining whether a Default or Event of Default has occurred and whether or
not the signers know of any Default or Event of Default by the Company that
occurred during such fiscal quarter or fiscal year. If they do know of such a
Default or Event of Default, the certificate shall describe all such Defaults
or Events of Default, their status and the action the Company is taking or
proposes to take with respect thereto. The first certificate to be delivered
by the Company pursuant to this Section 4.11 shall be for the fiscal quarter
ending June 27, 1997.
-41-
SECTION 4.12. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, or any successor provision thereto, the Company shall
file with the SEC (if permitted by SEC practice and applicable law and
regulations) the annual reports, quarterly reports and other documents which
the Company would have been required to file with the SEC pursuant to such
Section 13(a) or 15(d) or any successor provision thereto if the Company were
so subject, such documents to be filed with the SEC on or prior to the
respective dates (the "REQUIRED FILING DATES") by which the Company would
have been required so to file such documents if the Company were so subject.
The Company shall also in any event (a) within 15 days of each Required
Filing Date (whether or not permitted or required to be filed with the SEC)
(i) transmit (or cause to be transmitted) by mail to all Holders, as their
names and addresses appear in the Security Register, without cost to such
Holders, and (ii) file with the Trustee, copies of the annual reports,
quarterly reports and other documents which the Company is required to file
with the SEC pursuant to the preceding sentence, or, if such filing is not so
permitted, information and data of a similar nature, and (b) if,
notwithstanding the preceding sentence, filing such documents by the Company
with the SEC is not permitted by SEC practice or applicable law or
regulations, promptly upon written request supply copies of such documents to
any Holder. In addition, for so long as any Securities remain outstanding,
the Company will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, and, to any
beneficial holder of Securities, if not obtainable from the SEC, information
of the type that would be filed with the SEC pursuant to the foregoing
provisions, upon the request of any such holder. The Company will also
comply with Section 314(a) of the TIA.
SECTION 4.13. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law, which would prohibit or
forgive the Company or such Guarantor from paying all or any portion of the
principal of and/or interest, if any, on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company and each Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.14. CHANGE OF CONTROL.
(a) Following the occurrence of a Change of Control (the date
of such occurrence being the "CHANGE OF CONTROL DATE"), the Company shall
notify the Holders of the Securities of such occurrence in the manner
prescribed by this Indenture and shall, unless the Company shall have elected
to redeem the Securities prior to May 1, 2001 upon a Change of Control as
permitted by paragraph 7 of the Securities, within 20 days after the Change
of Control Date, make an Offer to Purchase all Securities then outstanding at
a purchase price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase
Date (subject to the right of Holders of record on the relevant Interest
Record Date to receive interest due on the relevant Interest Payment Date).
The Company's obligations may be satisfied if a third party makes the Offer
to Purchase in the manner, at the times and otherwise in compliance with the
requirements of this Indenture applicable to an Offer to Purchase made by the
Company and purchases all Securities validly tendered and not withdrawn under
such Offer to Purchase. Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to
-42-
the requirement that any portion of a Security tendered must be tendered in
an integral multiple of $1,000 principal amount.
(b) On or prior to the Purchase Date specified in the Offer to
Purchase, the Company shall (i) accept for payment all Securities or portions
thereof validly tendered pursuant to the Offer, (ii) deposit with the Paying
Agent or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 2.04, money sufficient to pay the
Purchase Price of all Securities or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee for cancellation all
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The
Paying Agent (or the Company, if so acting) shall promptly mail or deliver to
Holders of Securities so accepted, payment in an amount equal to the Purchase
Price for such Securities, and the Trustee shall promptly authenticate and
mail or deliver to each Holder of Securities a new Security or Securities
equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for payment
shall be promptly mailed or delivered by the Company to the Holder thereof.
The Company shall publicly announce the results of the Offer on or as soon as
practicable after the Purchase Date.
(c) If the Company makes an Offer to Purchase, the Company will
comply with all applicable tender offer laws and regulations, including, to
the extent applicable, Section 14(e) and Rule 14e-1 under the Exchange Act,
and any other applicable Federal or state securities laws and regulations and
any applicable requirements of any securities exchange on which the
Securities are listed, and any violation of the provisions of this Indenture
relating to such Offer to Purchase occurring as a result of such compliance
shall not be deemed a Default or an Event of Default.
SECTION 4.15. LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
(a) The Company shall not, directly or indirectly, Incur any
Indebtedness that by its terms would expressly rank senior in right of
payment to the Securities and expressly rank subordinate in right of payment
to any Senior Indebtedness.
(b) The Company shall not permit any Guarantor to, and no
Guarantor shall, directly or indirectly, Incur any Indebtedness that by its
terms would expressly rank senior in right of payment to the Guaranty of such
Guarantor and expressly rank subordinate in right of payment to any Guarantor
Senior Indebtedness of such Guarantor.
SECTION 4.16. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Equity
Interests or with respect to any other interest or participation in, or
measured by, its profits, or pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, (b) make loans or advances to, or guarantee any
Indebtedness or other obligations of, the Company or any other Restricted
Subsidiary, or (c) transfer any of its properties or assets to the Company or
any other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) the Senior Credit Facility, or any other
agreement of the Company or the Restricted Subsidiaries outstanding on the
Issue Date, in each case as in effect on the Issue Date, and any amendments,
restatements, renewals, replacements or refinancings thereof; PROVIDED,
HOWEVER, that any such amendment, restatement, renewal, replacement or
-43-
refinancing is no more restrictive in the aggregate with respect to such
encumbrances or restrictions than those contained in the Senior Credit
Facility on the Issue Date; (ii) applicable law; (iii) any instrument
governing Indebtedness or Equity Interests of an Acquired Person acquired by
the Company or any Restricted Subsidiary as in effect at the time of such
acquisition (except to the extent such Indebtedness was Incurred by such
Acquired Person in connection with, as a result of or in contemplation of
such acquisition); PROVIDED, HOWEVER, that such encumbrances and restrictions
are not applicable to the Company or any Restricted Subsidiary, or the
properties or assets of the Company or any Restricted Subsidiary, other than
the Acquired Person; (iv) customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices; (v) Purchase Money Indebtedness for property acquired in the
ordinary course of business that only imposes encumbrances and restrictions
on the property so acquired; (vi) any agreement for the sale or disposition
of the Equity Interests or assets of any Restricted Subsidiary; PROVIDED,
HOWEVER, that such encumbrances and restrictions described in this clause
(vi) are only applicable to such Restricted Subsidiary or assets, as
applicable, and any such sale or disposition is made in compliance with
Section 4.05 to the extent applicable thereto; (vii) refinancing Indebtedness
permitted under clause (h) of the second paragraph of Section 4.04; PROVIDED,
HOWEVER, that such encumbrances and restrictions contained in the agreements
governing such Indebtedness are no more restrictive in the aggregate than
those contained in the agreements governing the Indebtedness being refinanced
immediately prior to such refinancing; (viii) this Indenture; or (ix) any
such customary encumbrance or restriction existing under any other security
agreement, instrument or document hereafter in effect; PROVIDED, HOWEVER,
that the terms and conditions of any such encumbrance or restriction are not
more restrictive than those contained in the Senior Credit Facility as in
effect on the Issue Date.
SECTION 4.17. DESIGNATION OF UNRESTRICTED SUBSIDIARIES.
(a) The Company may designate after the Issue Date any
Subsidiary of the Company as an "Unrestricted Subsidiary" under this
Indenture (a "DESIGNATION") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(ii) at the time of and after giving effect to such
Designation, the Company could Incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the Consolidated Coverage
Ratio of the first paragraph of Section 4.04; and
(iii) the Company would be permitted to make an Investment
(other than a Permitted Investment) at the time of Designation
(assuming the effectiveness of such Designation) pursuant to the first
paragraph of Section 4.06 in an amount (the "DESIGNATION AMOUNT") equal
to the Fair Market Value of the Company's proportionate interest in the
net worth of such Subsidiary on such date in an amount equal to the
excess of (x) the total assets of such Subsidiary, valued on an
aggregate basis at Fair Market Value, over (y) the total liabilities of
such Subsidiary, determined in accordance with GAAP.
Neither the Company nor any Restricted Subsidiary shall at any
time (x) provide credit support for, subject any of its property or assets
(other than the Equity Interests of any Unrestricted Subsidiary) to the
satisfaction of, or guarantee, any Indebtedness of any Unrestricted Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary, or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the
occurrence of a default with respect to any Indebtedness of any Unrestricted
Subsidiary, except for any non-recourse guarantee given solely
-44-
to support the pledge by the Company or any Restricted Subsidiary of the
capital stock of any Unrestricted Subsidiary. All Subsidiaries of
Unrestricted Subsidiaries shall be automatically deemed to be Unrestricted
Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as
an Unrestricted Subsidiary (a "REVOCATION") if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation;
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred for all purposes of this
Indenture; and
(iii) any transaction (or series of related transactions)
between such Subsidiary and any of its Affiliates that occurred while
such Subsidiary was an Unrestricted Subsidiary would be permitted by
Section 4.03 as if such transaction (or series of related transactions)
had occurred at the time of such Revocation.
Upon the effectiveness of any such Revocation, the Company
shall cause such Subsidiary to become a Guarantor pursuant to and in
accordance with Section 4.19.
All Designations and Revocations must be evidenced by Board
Resolutions of the Company, delivered to the Trustee certifying compliance
with the foregoing provisions.
SECTION 4.18. LIMITATION ON LIENS.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, Incur any Liens of any kind
against or upon any of their respective properties or assets now owned or
hereafter acquired, or any proceeds therefrom or any income or profits
therefrom, to secure any Indebtedness, unless contemporaneously therewith
effective provision is made, in the case of the Company, to secure the
Securities and all other amounts due under the Indenture, and in the case of
a Restricted Subsidiary which is a Guarantor, to secure such Restricted
Subsidiary's Guaranty and all other amounts due under the Indenture, equally
and ratably with such Indebtedness (or, in the event that such Indebtedness
is subordinated in right of payment to the Securities or such Restricted
Subsidiary's Guaranty, prior to such Indebtedness) with a Lien on the same
properties and assets securing such Indebtedness for so long as such
Indebtedness is secured by such Lien, except for (i) Liens securing any
Senior Indebtedness or any guarantee of Senior Indebtedness by any Restricted
Subsidiary that is a Guarantor and (ii) Permitted Liens.
SECTION 4.19. GUARANTY OF NOTES BY RESTRICTED SUBSIDIARIES.
The Company shall cause each Restricted Subsidiary (other than
a Guarantor) formed, created or acquired after the Issue Date to guarantee
all of the Company's Obligations under the Securities and this Indenture on
the terms set forth in Article Eleven; PROVIDED, HOWEVER, that the guarantee
of such Restricted Subsidiary shall be subordinated in right of payment to
all Guarantor Senior Indebtedness of such Restricted Subsidiary pursuant to
the subordination provisions of Article Twelve. The Company shall cause each
such Restricted Subsidiary to (i) execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee
pursuant to which such Restricted Subsidiary shall become a party to this
Indenture as a Guarantor and thereby unconditionally guarantee all of the
Company's Obligations under the Securities and this Indenture on the terms
set forth in Article Eleven and Article Twelve hereof, (ii) execute and
-45-
deliver to the Trustee a Security Guarantee in accordance with Section 11.06
and (iii) deliver to the Trustee an opinion of counsel that each of such
supplemental indenture and Security Guarantee has been duly authorized,
executed and delivered by such Restricted Subsidiary and constitutes a legal,
valid, binding and enforceable obligation of such Restricted Subsidiary
(which opinion may be subject to customary assumptions and qualifications).
Thereafter, such Restricted Subsidiary shall (unless released in accordance
with the terms of this Indenture) be a Guarantor for all purposes of this
Indenture.
SECTION 4.20. LIMITATION ON THE SALE OR ISSUANCE OF EQUITY
INTERESTS OF RESTRICTED SUBSIDIARIES.
The Company shall not sell any Equity Interest of a Restricted
Subsidiary, and shall not cause or permit any Restricted Subsidiary, directly
or indirectly, to issue or sell any Equity Interests, except: (a) to the
Company or a Wholly Owned Restricted Subsidiary; or (b) if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary. Notwithstanding the foregoing,
the Company is permitted to sell all the Equity Interests of a Restricted
Subsidiary so long as the Company complies with Section 4.05.
SECTION 4.21. LIMITATION ON LINES OF BUSINESS.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary, directly or indirectly to, engage in any business
outside the building products business other than a Related Business.
SECTION 4.22. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of the
Securities, this Indenture or the Registration Rights Agreement unless such
consideration is offered to be paid or agreed to be paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. MERGERS, SALE OF ASSETS, ETC.
(a) The Company shall not consolidate with or merge with or
into (whether or not the Company is the Surviving Person) any other entity
and the Company shall not and shall not cause or permit any Restricted
Subsidiary to, sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of the Company's properties and assets (determined
on a consolidated basis for the Company and the Restricted Subsidiaries) to
any entity in a single transaction or series of related transactions, unless:
(i) either (x) the Company shall be the Surviving Person or (y) the
Surviving Person (if other than the Company) shall be a corporation organized
and validly existing under the laws of the United States of America or any
State thereof or the District of Columbia, and shall, in any such case,
expressly assume by a supplemental indenture, the due and punctual payment of
the principal of, premium, if any, and interest on all the Securities and the
per-
-46-
formance and observance of every covenant of this Indenture and the
Registration Rights Agreement to be performed or observed on the part of the
Company; (ii) immediately thereafter, no Default or Event of Default shall
have occurred and be continuing; and (iii) immediately after giving effect to
any such transaction involving the Incurrence by the Company or any
Restricted Subsidiary, directly or indirectly, of additional Indebtedness
(and treating any Indebtedness not previously an obligation of the Company or
any Restricted Subsidiary in connection with or as a result of such
transaction as having been Incurred at the time of such transaction), the
Surviving Person could Incur, on a PRO FORMA basis after giving effect to
such transaction as if it had occurred at the beginning of the four quarter
period immediately preceding such transaction for which consolidated
financial statements of the Company are available, at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under the
Consolidated Coverage Ratio of the first paragraph of Section 4.04.
Notwithstanding the foregoing clause (iii) of the immediately
preceding paragraph, any Restricted Subsidiary may consolidate with, merge
into or transfer all or part of its properties and assets to the Company.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all the properties and assets of one or
more Restricted Subsidiaries the Equity Interests of which constitutes all or
substantially all the properties and assets of the Company shall be deemed to
be the transfer of all or substantially all the properties and assets of the
Company.
(b) No Guarantor (other than a Guarantor whose Guaranty is to
be released in accordance with the terms of Section 11.03) shall consolidate
with or merge with or into another Person, whether or not such Person is
affiliated with such Guarantor and whether or not such Guarantor is the
Surviving Person, unless (i) the Surviving Person (if other than such
Guarantor) is a corporation organized and validly existing under the laws of
the United States, any State thereof or the District of Columbia; (ii) the
Surviving Person (if other than such Guarantor) expressly assumes by a
supplemental indenture all the obligations of such Guarantor under its
Guaranty and the performance and observance of every covenant of the
Indenture and the Registration Right Agreement to be performed or observed by
such Guarantor, (iii) at the time of and immediately after such Disposition,
no Default or Event of Default shall have occurred and be continuing; and
(iv) immediately after giving effect to any such transaction involving the
Incurrence by such Guarantor, directly or indirectly, of additional
Indebtedness (and treating any Indebtedness not previously an obligation of
such Guarantor in connection with or as a result of such transaction as
having been Incurred at the time of such transaction), the Company could
Incur, on a PRO FORMA basis after giving effect to such transaction as if it
had occurred at the beginning of the four quarter period immediately
preceding such transaction for which consolidated financial statements of the
Company are available, at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the Consolidated Coverage Ratio of the first
paragraph of Section 4.04; PROVIDED, HOWEVER, that clause (iv) of this
paragraph shall not be a condition to a merger or consolidation of a
Guarantor if such merger or consolidation only involves the Company and/or
one or more other Guarantors.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
In the event of any transaction (other than a lease) described
in and complying with the conditions listed in Section 5.01 in which the
Company or a Guarantor, as the case may be, is not the Surviving Person and
the Surviving Person is to assume all the Obligations of the Company under
the Securities, this Indenture and the Registration Rights Agreement or of
such Guarantor under its Guaranty, the Indenture and the Registration Rights
Agreement, as the case may be, pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or
-47-
such Guarantor, as the case may be, and the Company shall be discharged from
its Obligations under this Indenture and the Securities or such Guarantor
shall be discharged from its Obligations under the Indenture and its
Guaranty, as the case may be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following shall be an "Event of Default" for
purposes of this Indenture:
(a) failure to pay principal of any Security when due (whether
or not prohibited by the provisions of Article Eight);
(b) failure to pay any interest on any Security when due,
continued for 30 days or more (whether or not prohibited by the
provisions of Article Eight);
(c) default in the payment of principal of or interest on any
Security required to be purchased pursuant to any Offer to Purchase
required by this Indenture when due and payable or failure to pay on the
Purchase Date the Purchase Price for any Security validly tendered
pursuant to any Offer to Purchase (whether or not prohibited by the
provisions of Article Eight);
(d) failure to perform or comply with any of the provisions of
Section 5.01;
(e) failure to perform any other covenant, warranty or
agreement of the Company under this Indenture or in the Securities or of
the Guarantors under this Indenture or in the Guaranties;
(f) default or defaults under the terms of one or more
instruments evidencing or securing Indebtedness of the Company or any of
its Significant Restricted Subsidiaries having an outstanding principal
amount of $5.0 million or more individually or in the aggregate that has
resulted in the acceleration of the payment of such Indebtedness or
failure by the Company or any of its Significant Restricted Subsidiaries
to pay principal when due at the stated maturity of any such
Indebtedness; PROVIDED, HOWEVER, that it shall not be an Event of Default
if such Indebtedness shall have been repaid in full or such acceleration
shall have been rescinded within 20 days of the payment default in
respect thereof or such acceleration, as the case may be;
(g) the rendering of a final judgment or judgments (not subject
to appeal) against the Company or any of its Significant Restricted
Subsidiaries in an amount of $5.0 million or more (net of any amounts
covered by reputable and creditworthy insurance companies) which remains
undischarged or unstayed for a period of 60 days after the date on which
the right to appeal has expired;
(h) the Company or any Significant Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy Law: (i) admits in
writing its inability to pay its debts generally as they become due; (ii)
commences a voluntary case or proceeding; (iii) consents to the entry of
an order for relief against it in an involuntary case or proceeding; (iv)
consents or acquiesces in the institution of a bank-
-48-
ruptcy or insolvency proceeding against it; (v) consents to the
appointment of a Custodian of it or for all or substantially all of its
property; or (vi) makes a general assignment for the benefit of its
creditors, or any of them takes any action to authorize or effect any of
the foregoing;
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (i) is for relief against the Company or
any Significant Restricted Subsidiary in an involuntary case or
proceeding; (ii) appoints a Custodian of the Company or any Significant
Restricted Subsidiary for all or substantially all of its property; or
(iii) orders the liquidation of the Company or any Significant Restricted
Subsidiary; and in each case the order or decree remains unstayed and in
effect for 60 days; PROVIDED, HOWEVER, that if the entry of such order or
decree is appealed and dismissed on appeal, then the Event of Default
hereunder by reason of the entry of such order or decree shall be deemed
to have been cured;
(j) other than as provided in or pursuant to any Guaranty or
the Indenture, any Guaranty ceases to be in full force and effect or is
declared null and void and unenforceable or found to be invalid or any
Guarantor denies its liability under its Guaranty (other than by reason
of a release of such Guarantor from its Guaranty in accordance with the
terms of the Indenture and such Guaranty.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors. The term
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
A Default under clause (e) of this Section 6.01 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 Securities notify the Company and
the Trustee, of the Default in writing and the Company does not cure the
Default within 30 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a
"Notice of Default." Such notice shall be given by the Trustee if so
requested by the Holders of at least 25% in principal amount of the
Securities then outstanding. When a Default is cured, it ceases.
SECTION 6.02. ACCELERATION.
If an Event of Default with respect to the Securities (other
than an Event of Default specified in clause (h) or (i) of Section 6.01 with
respect to the Company) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of the outstanding Securities
by notice in writing to the Company (and to the Trustee if given by the
Holders) may declare the unpaid principal of and accrued interest to the date
of acceleration on all outstanding Securities to be due and payable
immediately and, upon any such declaration, such principal amount and accrued
interest, notwithstanding anything contained in this Indenture or the
Securities to the contrary, shall become immediately due and payable;
PROVIDED, HOWEVER, that so long as the Senior Credit Facility shall be in
full force, if an Event of Default shall have occurred and be continuing
(other than an Event of Default specified in clause (h) or (i) of Section
6.01 with respect to the Company), the Securities shall not become due and
payable until the earlier to occur of (x) five Business Days following
delivery of a written notice by the Trustee of such acceleration of the
Securities to the agent under the Senior Credit Facility and (y) the
acceleration (IPSO FACTO or otherwise) of any Indebtedness under the Senior
Credit Facility.
If an Event of Default specified in clause (h) or (i) of Section
6.01 with respect to the Company occurs, all unpaid principal of and accrued
interest on all outstanding Securities shall IPSO FACTO become immediately
due and payable without any declaration or other act on the part of the
Trustee or any Holder.
-49-
After a declaration of acceleration, but before a judgment or
decree of the money due in respect of the Securities has been obtained, the
Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if all existing Events of Default (other
than the nonpayment of principal of and interest on the Securities which has
become due solely by virtue of such acceleration) have been cured or waived
and if the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy maturing 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 to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULT.
Subject to Sections 2.09, 6.07 and 10.02, prior to the
declaration of acceleration of the Securities, the Holders of not less than a
majority in aggregate principal amount of the outstanding Securities by
written notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of
or interest on any Security as specified in clauses (a), (b) and (c) of
Section 6.01 or a Default in respect of any term or provision of this
Indenture that may not be amended or modified without the consent of each
Holder affected as provided in Section 10.02. The Company shall deliver to
the Trustee an Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents.
In case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the
Securities, respectively. This paragraph of this Section 6.04 shall be in
lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the
TIA is hereby expressly excluded from this Indenture and the Securities, as
permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability;
PROVIDED, HOWEVER, that the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction. In the event
the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee
-50-
shall be entitled to indemnification satisfactory to it in its sole
discretion against any loss or expense caused by taking such action or
following such direction. This Section 6.05 shall be in lieu of Section
316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by
the TIA.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of the outstanding Securities make a written request to the Trustee to
pursue a remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee
a direction which, in the opinion of the Trustee, is inconsistent with
the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of or interest on a Security,
on or after the respective due dates expressed in the Security, or to bring
suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest
specified in Section 6.01(a), (b) or (c) 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 Securities for the
whole amount of principal and accrued interest remaining unpaid, together
with interest overdue on principal and to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each
case at the rate PER ANNUM borne by the Securities and such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
S-ecurityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its
-51-
creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Securityholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 shall not apply to a
suit by the Trustee, a suit by a Holder or group of Holders of more than 10%
in aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for the enforcement or the payment of the principal
or interest on any Securities on or after the respective due dates expressed
in the Security.
-52-
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the
performance of such duties as are specifically set forth herein; and
(2) 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 conforming to the requirements of this Indenture;
however, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) 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
(3) 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.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive from such Holders an
indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance
with such request or direction.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
-53-
(f) 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.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(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 and/or an Opinion of Counsel, which shall
conform to the provisions of Section 13.05. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct or negligence of
any agent or attorney (other than an agent who is an employee of the Trustee)
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(g) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Securityholders pursuant to this Indenture, unless
such S e c urityholders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(h) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event
of Default unless a Trust Officer of the Trustee has actual knowledge thereof
or unless the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
-54-
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee,
subject to Section 7.10 hereof. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or any document issued in connection with the sale
of Securities or any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and
the Trustee knows of such Defaults or Events of Default, the Trustee shall
mail to each Securityholder notice of the Default or Event of Default within
30 days after the occurrence thereof. Except in the case of a Default or an
Event of Default in payment of principal of or interest on any Security or a
Default or Event of Default in complying with Section 5.01, 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 interest of
Securityholders. This Section 7.05 shall be in lieu of the proviso to Section
315(b) of the TIA and such proviso to Section 315(b) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by
the TIA.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. 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 disbursements, expenses
and advances (including fees, disbursements and expenses of its agents and
counsel) incurred or made by it in addition to the compensation for its
services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trus-
-55-
tee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 9.01 hereof.
The Company shall indemnify the Trustee for, and hold it
harmless against any and all loss, damage, claims, liability or expense,
including taxes (other than franchise taxes imposed on the Trustee and taxes
based upon, measured by or determined by the income of the Trustee), arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except to the extent that such
loss, damage, claim, liability or expense is due to its own negligence or bad
faith. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. However, the failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense (and may employ its own counsel) at the
Company's expense; PROVIDED, HOWEVER, THAT the Company's reimbursement
obligation with respect to counsel employed by the Trustee will be limited to
the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation of this
Indenture by the Trustee.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Securities against all money
or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of or interest on
particular Securities or the Purchase Price or redemption price of any
Securities to be purchased pursuant to an Offer to Purchase or redeemed.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and
the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to
constitute expenses of administration under any Bankruptcy Law. The Company's
obligations under this Section 7.07 and any claim arising hereunder shall
survive the resignation or removal of any Trustee, the discharge of the
Company's obligations pursuant to Article Nine and any rejection or
termination under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company
in writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under
any Bankruptcy Law;
(c) a custodian or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
-56-
If the Trustee resigns or is removed 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. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the Securities
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property
held by it as Trustee to the successor Trustee, subject to the Lien provided
in Section 7.07, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation or banking corporation, the resulting, surviving or
transferee corporation or banking corporation without any further act shall
be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. If the
Trustee has or shall acquire any "conflicting interest" within the meaning of
TIA Section 310(b), the Trustee and the Company shall comply with the
provisions 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.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, the Trustee shall resign immediately in the
manner and with the effect hereinbefore specified in this Article Seven.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST 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 therein.
-57-
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and the Trustee and each
Holder of the Securities by his acceptance thereof likewise covenant and
agree, that all Securities shall be issued subject to the provisions of this
Article Eight; and each person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees
that all payments of the principal of and interest on the Securities by the
Company shall, to the extent and in the manner set forth in this Article
Eight, be subordinated and junior in right of payment to the prior payment in
full in cash of all amounts payable under Senior Indebtedness.
SECTION 8.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No direct or indirect payment (excluding any payment or
distribution of Permitted Junior Securities and excluding any payment from
funds held in trust for the benefit of Holders pursuant to Article Nine (a
"DEFEASANCE TRUST PAYMENT")) by or on behalf of the Company of principal of
or interest on the Securities, whether pursuant to the terms of the
Securities, upon acceleration, pursuant to an Offer to Purchase or otherwise,
shall be made if, at the time of such payment, there exists a default in the
payment of all or any portion of the obligations on any Designated Senior
Indebtedness, whether at maturity, on account of mandatory redemption or
prepayment, acceleration or otherwise, and such default shall not have been
cured or waived or the benefits of this sentence waived by or on behalf of
the holders of such Designated Senior Indebtedness. In addition, during the
continuance of any non-payment event of default with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
immediately accelerated, and upon receipt by the Trustee of written notice (a
"PAYMENT BLOCKAGE NOTICE" ) from the holder or holders of such Designated
Senior Indebtedness or the trustee or agent acting on behalf of such
Designated Senior Indebtedness, then, unless and until such non-payment event
of default has been cured or waived or has ceased to exist or such Designated
Senior Indebtedness has been discharged or repaid in full in cash or the
benefits of these provisions have been waived by the holders of such
Designated Senior Indebtedness, no direct or indirect payment (excluding any
payment or distribution of Permitted Junior Securities and excluding any
Defeasance Trust Payment) shall be made by or on behalf of the Company of
principal of or interest on the Securities, to such Holders, during a period
(a "PAYMENT BLOCKAGE PERIOD") commencing on the date of receipt of such
notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the
contrary, (x) in no event shall a Payment Blockage Period extend beyond 179
days from the date the Payment Blockage Notice in respect thereof was given,
(y) there shall be a period of at least 181 consecutive days in each 360-day
period when no Payment Blockage Period is in effect and (z) not more than one
Payment Blockage Period may be commenced with respect to the Securities
during any period of 360 consecutive days. No non-payment event of default
that existed or was continuing on the date of commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period (to the extent the holder of Designated Senior
Indebtedness, or trustee or agent, giving notice commencing such Payment
Blockage Period had knowledge of such existing or continuing event of
default) may be, or be made, the basis for the commencement of any other
Payment Blockage Period by the holder or holders of such Designated Senior
Indebtedness or the trustee or agent acting on behalf of such Designated
Senior Indebtedness, whether or not within a period
-58-
of 360 consecutive days, unless such non-payment event of default has been
cured or waived for a period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 8.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Designated
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Designated Senior
Indebtedness may have been issued, as their respective interests may appear,
but only to the extent that, upon notice from the Trustee to the holders of
Designated Senior Indebtedness that such prohibited payment has been made,
the holders of the Designated Senior Indebtedness (or their representative or
representatives or a trustee or trustees) notify the Trustee in writing of
the amounts then due and owing on the Designated Senior Indebtedness, if any,
and only the amounts specified in such notice to the Trustee shall be paid to
the holders of Designated Senior Indebtedness.
SECTION 8.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets or securities of
the Company of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities and
excluding any Defeasance Trust Payment), upon any dissolution or winding-up
or total liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all Senior Indebtedness shall first be paid in full in cash before the
Holders of the Securities or the Trustee on behalf of such Holders shall be
entitled to receive any payment by the Company of the principal of or
interest on the Securities, or any payment by the Company to acquire any of
the Securities for cash, property or securities, or any distribution with
respect to the Securities of any cash, property or securities (excluding any
payment or distribution of Permitted Junior Securities and excluding any
Defeasance Trust Payment). Before any payment may be made by, or on behalf
of, the Company of the principal of or interest on the Securities upon any
such dissolution or winding-up or total liquidation or reorganization, any
payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (excluding any payment or
distribution of Permitted Junior Securities and excluding any Defeasance
Trust Payment), to which the Holders of the Securities or the Trustee on
their behalf would be entitled, but for the subordination provisions of this
Indenture, shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidation trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Indebtedness (PRO RATA to
such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their representatives or to the trustee or trustees
or agent or agents under any agreement or indenture pursuant to which any of
such Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all such Senior Indebtedness in
full in cash after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of the Company of any kind or character, whether in
cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities and excluding any Defeasance Trust Payment),
shall be received by the Trustee or any Holder of Securities at a time when
such payment or distribution is prohibited by Section 8.03(a) and before all
obligations in respect of Senior Indebtedness are paid in full in cash, such
payment or distribution shall be received and held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (PRO RATA to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture pursuant to which any of
-59-
such Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of Senior Indebtedness remaining
unpaid until all such Senior Indebtedness has been paid in full in cash after
giving effect to any prior or concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article Five shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 8.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Five.
SECTION 8.04. SUBROGATION.
Upon the payment in full in cash of all Senior Indebtedness, or
provision for payment, the Holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company made on such
Senior Indebtedness until the principal of and interest on the Securities
shall be paid in full in cash; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Securities or the
Trustee on their behalf would be entitled except for the provisions of this
Article Eight, and no payment over pursuant to the provisions of this Article
Eight to the holders of Senior Indebtedness by Holders of the Securities or
the Trustee on their behalf shall, as between the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article Eight are
and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article Eight shall have been applied, pursuant to the provisions of this
Article Eight, to the payment of all amounts payable under Senior
Indebtedness, then and in such case, the Holders of the Securities shall be
entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount required to make payment in full in cash of such Senior
Indebtedness.
SECTION 8.05. OBLIGATIONS OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Eight or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of the Senior Indebtedness,
nor shall anything herein or therein prevent the Holder of any Security or
the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights,
if any, under this Article Eight of the holders of the Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
-60-
Without limiting the generality of the foregoing, nothing
contained in this Article Eight shall restrict the right of the Trustee or
the Holders of Securities to take any action to declare the Securities to be
due and payable prior to their stated maturity pursuant to Section 6.01 or to
pursue any rights or remedies hereunder; PROVIDED, HOWEVER, that all Senior
Indebtedness then due and payable shall first be paid in full in cash before
the Holders of the Securities or the Trustee are entitled to receive any
direct or indirect payment from the Company of principal of or interest on
the Securities.
SECTION 8.06. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities pursuant to the provisions
of this Article Eight. The Trustee shall not be charged with knowledge of the
existence of any event of default with respect to any Senior Indebtedness or
of any other facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee shall have received notice in
writing at its Corporate Trust Office to that effect signed by an Officer of
the Company, or by a holder of Senior Indebtedness or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts
exist; PROVIDED, HOWEVER, that if the Trustee shall not have received the
notice provided for in this Section 8.06 at least two Business Days prior to
the date upon which by the terms of this Indenture any moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 8.06 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 8.03. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or itself to be a holder of any Senior
Indebtedness (or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such
holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Eight, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article Eight, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 8.07. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets or securities
referred to in this Article Eight, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or to
the Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Eight.
-61-
SECTION 8.08. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article Eight with respect to any Senior
Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee or any Paying Agent
of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eight, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness (except as provided in Section 8.03(b)). The Trustee
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company
or to any other person cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article Eight or
otherwise.
SECTION 8.09. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with. The provisions of this Article Eight are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
SECTION 8.10. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
SECURITIES.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Eight, and appoints the Trustee his attorney-in-fact
for such purposes, including, in the event of any dissolution, winding-up,
total liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings.
SECTION 8.11. THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Eight
shall not be construed as preventing the occurrence of an Event of Default
specified in clauses (a), (b) or (c) of Section 6.01.
SECTION 8.12. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Eight shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
-62-
SECTION 8.13. NO WAIVER OF SUBORDINATION PROVISIONS.
Without in any way limiting the generality of Section 8.09, the
holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Eight or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding or
secured; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (c) release any
Person liable in any manner for the collection of Senior Indebtedness; and
(d) exercise or refrain from exercising any rights against the Company and
any other Person.
SECTION 8.14. SUBORDINATION PROVISIONS NOT APPLICABLE TO MONEY HELD IN TRUST
FOR SECURITYHOLDERS; PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
All money and United States Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Article Nine shall
be for the sole benefit of the Holders and shall not be subject to this
Article Eight.
Nothing contained in this Article Eight or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions
described in Section 8.02, from making payments of principal of and interest
on the Securities or from depositing with the Trustee any moneys for such
payments or from effecting a termination of the Company's and the Guarantors'
obligations under the Securities and this Indenture as provided in Article
Nine, or (ii) the application by the Trustee of any moneys deposited with it
for the purpose of making such payments of principal of and interest on the
Securities, to the holders entitled thereto unless at least two Business Days
prior to the date upon which such payment becomes due and payable, the
Trustee shall have received the written notice provided for in Section
8.02(b) or in Section 8.06. The Company shall give prompt written notice to
the Trustee of any dissolution, winding-up, liquidation or reorganization of
the Company.
SECTION 8.15. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event
of Default, the Company shall promptly notify holders of the Senior
Indebtedness of the acceleration.
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. TERMINATION OF COMPANY'S OBLIGATIONS.
Subject to the provisions of Article Eight, the Company may
terminate its and the Guarantors' substantive obligations in respect of the
Securities by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by it on account of principal of and
interest on all Securities or otherwise. In addition to the foregoing,
subject to the provisions of Article Eight with respect to the creation of
-63-
the defeasance trust provided for in the following clause (i), the Company
may, provided that no Default or Event of Default has occurred and is
continuing or would arise therefrom (or, with respect to a Default or Event
of Default specified in Section 6.01(h) or (i), occurs at any time on or
prior to the 91st calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
91st day)) and provided that no default under any Senior Indebtedness would
result therefrom, terminate its and the Guarantors' substantive obligations
in respect of Article Four (other than Sections 4.01, 4.02, 4.07, 4.09, 4.11
and 4.12) and Article Five hereof and any Event of Default specified in
Section 6.01 (d) or (e) by (i) depositing with the Trustee, under the terms
of an irrevocable trust agreement, money or United States Government
Obligations sufficient (without reinvestment) to pay all remaining
Indebtedness on the Securities, (ii) delivering to the Trustee either an
Opinion of Counsel or a ruling directed to the Trustee from the Internal
Revenue Service to the effect that the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
termination of obligations, (iii) delivering to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
Section 9.01 will not result in any of the Company, the Trustee or the trust
created by the Company's deposit of funds pursuant to this provision becoming
or being deemed to be an "investment company" under the Investment Company
Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and (iv) delivering
to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating compliance with all conditions precedent provided for herein. In
addition, subject to the provisions of Article Eight with respect to the
creation of the defeasance trust provided for in the following clause (i),
the Company may, provided that no Default or Event of Default has occurred
and is continuing or would arise therefrom (or, with respect to a Default or
Event of Default specified in Section 6.01(h) or (i), occurs at any time on
or prior to the 91st calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
91st day)) and provided that no default under any Senior Indebtedness would
arise therefrom, terminate all of its and the Guarantors' substantive
obligations in respect of the Securities (including its obligations to pay
the principal of and interest on the Securities and the Guarantors' Guaranty
thereof) by (i) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or United States Government Obligations
sufficient (without reinvestment) to pay all remaining Indebtedness on the
Securities, (ii) delivering to the Trustee either a ruling directed to the
Trustee from the Internal Revenue Service to the effect that the Holders of
the Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and termination of obligations or an
Opinion of Counsel addressed to the Trustee based upon such a ruling or
based on a change in the applicable Federal tax law since the date of this
Indenture to such effect, (iii) delivering to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
Section 9.01 will not result in any of the Company, the Trustee or the trust
created by the Company's deposit of funds pursuant to this provision becoming
or being deemed to be an "investment company" under the Investment Company
Act and (iv) delivering to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating compliance with all conditions precedent
provided for herein.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13
and 4.01 (but not with respect to termination of substantive obligations
pursuant to the third sentence of the foregoing paragraph), 4.02, 7.07, 7.08,
9.03 and 9.04 shall survive until the Securities are no longer outstanding.
Thereafter the Company's obligations in Sections 7.07, 9.03 and 9.04 shall
survive.
After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Securities and this Indenture except for those
surviving obligations specified above.
-64-
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the United States
Government Obligations deposited pursuant to this Section 9.01 or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of
outstanding Securities.
SECTION 9.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or United States
Government Obligations deposited with it pursuant to Section 9.01, and shall
apply the deposited money and the money from United States Government
Obligations in accordance with this Indenture solely to the payment of
principal of and interest on the Securities.
SECTION 9.03. REPAYMENT TO COMPANY.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly
pay to the Company upon written request any excess money held by it at any
time. The Trustee shall pay to the Company upon written request any money
held by it for the payment of principal or interest that remains unclaimed
for two years; PROVIDED, HOWEVER, that the Trustee before being required to
make any payment may at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York or mail to each
Holder entitled to such money notice that such money remains unclaimed and
that, after a date specified therein which shall be at least 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining shall be repaid to the Company. After payment to the Company,
Securityholders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates
another person and all liability of the Trustee or Paying Agent with respect
to such money shall thereupon cease.
SECTION 9.04. REINSTATEMENT.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Company's and the Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; PROVIDED, HOWEVER, that if the Company has made any payment of
interest on or principal of any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
-65-
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Guarantors, when authorized by a resolution
of their respective Boards of Directors, and the Trustee may amend or
supplement this Indenture or the Securities without notice to or consent of
any Securityholder:
(a) to cure any ambiguity, defect or inconsistency; PROVIDED,
HOWEVER, that such amendment or supplement does not adversely affect the
rights of any Holder;
(b) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and his Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to comply with any requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional
benefit or rights to the Holders;
(f) to make any other change that does not adversely affect the
rights of any Holder under this Indenture;
(g) to evidence the succession of another Person to any
Guarantor and the assumption by any such successor of the covenants of
such Guarantor herein and in the Guaranty in connection with any
transaction complying with Article Five of this Indenture;
(h) to add to the covenants of the Company or the Guarantors
for the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(i) to secure the Securities pursuant to the requirements of
Section 4.18 or otherwise; or
(j) to reflect the release of a Guarantor from its obligations
with respect to its Guaranty in accordance with the provisions of Section
11.03 and to add a Guarantor pursuant to the requirements of Section 4.19;
PROVIDED, HOWEVER, THAT the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 10.01.
-66-
SECTION 10.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Guarantors, when
authorized by a resolution of their respective Boards of Directors, and the
Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to Section 6.07, the Holders of a majority in
principal amount of the outstanding Securities may waive compliance by the
Company or any Guarantor with any provision of this Indenture or the Securities.
However, without the consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(a) change the Stated Maturity of the principal of or any
installment of interest on any Security or alter the optional redemption
or repurchase provisions of any Security or this Indenture in a manner
adverse to the Holders of the Securities;
(b) reduce the principal amount of any Security;
(c) reduce the rate of or extend the time for payment of
interest on any Security;
(d) change the place or currency of payment of the principal of
or interest on any Security;
(e) modify any provisions of Section 6.04 (other than to add
sections of this Indenture or the Securities subject thereto) or 6.07 or
this Section 10.02 (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without the
consent of each Securityholder affected);
(f) reduce the percentage of the principal amount of
outstanding Securities necessary for amendment to or waiver of compliance
with any provision of this Indenture or the Securities or for waiver of
any Default;
(g) waive a Default in the payment of the principal of or
interest on or redemption or purchase payment with respect to any
Security (except a rescission of acceleration of the Securities by the
Holders as provided in Section 6.02 and a waiver of the payment default
that resulted from such acceleration);
(h) modify the ranking or priority of the Securities or the
Guaranty in respect of any Guarantor, or modify the definition of Senior
Indebtedness or Guarantor Senior Indebtedness, or amend or modify any of
the provisions of Article Eight or Article Twelve in any manner adverse
to the Holders;
(i) release any Guarantor from any of its obligations under its
Guaranty or this Indenture otherwise than in accordance with this
Indenture; or
(j) modify the provisions relating to any Offer to Purchase
required pursuant to Section 4.05 or 4.14 in a manner materially adverse
to the Holders.
An amendment under this Section 10.02 may not make any change under
Article Eight or Article Twelve hereof that adversely affects in any material
respect the rights of any holder of Senior Indebtedness or Guarantor Senior
Indebtedness, as the case may be, then outstanding unless the holders of such
-67-
Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be, (or
any representative thereof authorized to give a consent) shall have consented
to such change.
It shall not be necessary for the consent of the Holders under
this Section 10.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
10.02 becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder
of that Security or portion of that Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Security or
portion of such Security by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Securities entitled to
consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the last sentence of the immediately preceding
paragraph, those persons who were Holders of Securities at such record date
(or their duly designated proxies), and only those persons, shall be entitled
to consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders of such
Securities after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (a) through (j) of Section 10.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 10.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new
-68-
Security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Security shall not affect the validity and effect of
such amendment, supplement or waiver.
SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of any amendment, supplement or waiver authorized pursuant to this Article
Ten is authorized or permitted by this Indenture and that such amendment,
supplement or waiver constitutes the legal, valid and binding obligation of
the Company and the Guarantors, enforceable in accordance with its terms
(subject to customary exceptions). The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise. In signing any amendment, supplement or waiver, the Trustee shall
be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
GUARANTY
SECTION 11.01. UNCONDITIONAL GUARANTY.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (each, a "GUARANTY") to each Holder of a Security authenticated by
the Trustee and to the Trustee and its successors and assigns that: the
principal of and interest on the Securities will be promptly paid in full
when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and interest
on any overdue interest on the Securities and all other obligations of the
Company to the Holders or the Trustee hereunder or under the Securities will
be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; subject, however, to the limitations set forth in Section
11.04. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Securities with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that
the Guaranty will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture, and this Guaranty.
If any Holder or the Trustee is required by any court or otherwise to return
to the Company, any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any Guarantor, any
amount paid by the Company or any Guarantor to the Trustee or such Holder,
this Guaranty, to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purpose of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forth become due and
payable by each Guarantor for the purpose of this Guaranty.
-69-
SECTION 11.02. SEVERABILITY.
In case any provision of this Guaranty shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. RELEASE OF A GUARANTOR.
If the Securities are defeased in accordance with the terms of
this Indenture, or if Section 5.01(b) is complied with, or if, subject to the
requirements of Section 5.01(a), all or substantially all of the assets of
any Guarantor or all of the Equity Interests of any Guarantor are sold
(including by issuance or otherwise) by the Company in a transaction
constituting an Asset Sale and (x) the Net Cash Proceeds from such Asset Sale
are used in accordance with Section 4.05 or (y) the Company delivers to the
Trustee an Officers' Certificate to the effect that the Net Cash Proceeds
from such Asset Sale shall be used in accordance with Section 4.05 and within
the time limits specified by Section 4.05, then each Guarantor (in the case
of defeasance) or such Guarantor (in the case of compliance with Section
5.01(b) or in the event of a sale or other disposition of all of the Equity
Interests of such Guarantor) or the corporation acquiring such assets (in the
event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) shall be released and discharged from all
obligations under this Article Eleven without any further action required on
the part of the Trustee or any Holder. The Trustee shall, at the sole cost
and expense of the Company and upon receipt at the reasonable request of the
Trustee of an Opinion of Counsel that the provisions of this Section 11.03
have been complied with, deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate certifying as to the compliance with this Section 11.03. Any
Guarantor not so released remains liable for the full amount of principal of
and interest on the Securities and the other obligations of the Company
hereunder as provided in this Article Eleven.
SECTION 11.04. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirms that it is the intention of all such parties that
the guarantee by such Guarantor pursuant to its Guaranty not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United
States Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar U.S. Federal or state or other
applicable law. To effectuate the foregoing intention, the Holders and each
Guarantor hereby irrevocably agree that the obligations of each Guarantor
under its Guaranty shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guaranty or pursuant to Section 11.05, result in the
obligations of such Guarantor under its Guaranty not constituting such a
fraudulent transfer or conveyance.
SECTION 11.05. CONTRIBUTION.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "FUNDING GUARANTOR") under the
Guaranty, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a PRO RATA amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with
GAAP, subject to Section 11.04, for all payments, damages and expenses
incurred by such Funding Guarantor in discharging the Company's obligations
with respect to the Securities or any other Guarantor's obligations with
respect to the Guaranty.
-70-
SECTION 11.06. EXECUTION OF SECURITY GUARANTY.
To further evidence their Guaranty to the Holders, each of the
Guarantors hereby agree to execute a Security Guarantee to be endorsed on
each Security ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guaranty set forth in Section 11.01 shall
remain in full force and effect notwithstanding any failure to endorse on
each Security a Security Guarantee. Each such Security Guarantee shall be
signed on behalf of each Guarantor by its Chairman of the Board, its
President or one of its Vice Presidents prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Security Guarantee on behalf of such Guarantor. Such
signature upon the Security Guarantee may be manual or facsimile signature of
such officer and may be imprinted or otherwise reproduced on the Security
Guarantee, and in case such officer who shall have signed the Security
Guarantee shall cease to be such officer before the Security on which such
Security Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the Person who signed
the Security Guarantee had not ceased to be such officer of such Guarantor.
SECTION 11.07. SUBORDINATION OF SUBROGATION AND OTHER RIGHTS.
Each Guarantor hereby agrees that any claim against the Company
that arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guaranty or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to,
and no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in
accordance with the provisions provided therefor in this Indenture.
ARTICLE TWELVE
SUBORDINATION OF GUARANTY
SECTION 12.01. GUARANTY OBLIGATIONS SUBORDINATED TO GUARANTOR SENIOR
INDEBTEDNESS.
Each Guarantor covenants and agrees, and the Trustee and each
Holder of the Securities by his acceptance thereof likewise covenant and
agree, that the Guaranty of such Guarantor shall be issued subject to the
provisions of this Article Twelve; and each person holding any Security,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that all payments of the principal of and interest on the
Securities pursuant to the Guaranty made by or on behalf of any Guarantor
shall, to the extent and in the manner set forth in this Article Twelve, be
subordinated and junior in right of payment to the prior payment in full in
cash of all amounts payable under Guarantor Senior Indebtedness of such
Guarantor.
SECTION 12.02. NO PAYMENT ON GUARANTIES IN CERTAIN CIRCUMSTANCES.
(a) No direct or indirect payment (excluding any payment or
distribution of Permitted Junior Securities) by or on behalf of any Guarantor
of principal of or interest on the Securities pursuant to such Guarantor's
Guaranty, whether pursuant to the terms of the Securities, upon acceleration
or otherwise, shall be made if, at the time of such payment, there exists a
default in the payment of all or any portion of the obligations on any
Designated Guarantor Senior Indebtedness of such Guarantor, whether at
maturity, on account of
-71-
mandatory redemption or prepayment, acceleration or otherwise, and such
default shall not have been cured or waived or the benefits of this sentence
waived by or on behalf of the holders of such Designated Guarantor Senior
Indebtedness. In addition, during the continuance of any non-payment event
of default with respect to any Designated Guarantor Senior Indebtedness
pursuant to which the maturity thereof may be immediately accelerated, and
upon receipt by the Trustee of written notice (the "GUARANTOR PAYMENT
BLOCKAGE NOTICE") from the holder or holders of such Designated Guarantor
Senior Indebtedness or the trustee or agent acting on behalf of such
Designated Guarantor Senior Indebtedness, then, unless and until such
non-payment event of default has been cured or waived or has ceased to exist
or such Designated Guarantor Senior Indebtedness has been discharged or paid
in full in cash or the benefits of these provisions have been waived by the
holders of such Designated Guarantor Senior Indebtedness, no direct or
indirect payment (excluding any payment or distribution of Permitted Junior
Securities) shall be made by or on behalf of such Guarantor of principal or
interest on the Securities during a period (a "GUARANTOR BLOCKAGE PERIOD")
commencing on the date of receipt of such notice by the Trustee and ending
179 days thereafter.
Notwithstanding anything herein or in the Securities to the
contrary, (x) in no event shall a Guarantor Blockage Period extend beyond 179
days from the date the Guarantor Payment Blockage Notice in respect thereof
was given, (y) there shall be a period of at least 181 consecutive days in
each 360-day period when no Guarantor Blockage Period is in effect and (z)
not more than one Guarantor Blockage Period may be commenced with respect to
any Guarantor during any period of 360 consecutive days. No non-payment
event of default that existed or was continuing on the date of commencement
of any Guarantor Blockage Period with respect to the Designated Guarantor
Senior Indebtedness initiating such Guarantor Blockage Period (to the extent
the holder of Designated Guarantor Senior Indebtedness, or trustee or agent,
giving notice commencing such Guarantor Blockage Period had knowledge of such
existing or continuing event of default) may be, or be made, the basis for
the commencement of any other Guarantor Blockage Period by the holder or
holders of such Designated Guarantor Senior Indebtedness or the trustee or
agent acting on behalf of such Designated Guarantor Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such
non-payment event of default has been cured or waived for a period of not
less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 12.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such
Designated Guarantor Senior Indebtedness or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any of
such Designated Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that, upon notice
from the Trustee to the holders of such Designated Guarantor Senior
Indebtedness that such prohibited payment has been made, the holders of such
Designated Guarantor Senior Indebtedness (or their representative or
representatives or a trustee or trustees) notify the Trustee in writing of
the amounts then due and owing on such Designated Guarantor Senior
Indebtedness, if any, and only the amounts specified in such notice to the
Trustee shall be paid to the holders of such Designated Guarantor Senior
Indebtedness.
SECTION 12.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets or securities of
any Guarantor of any kind or character, whether in cash, property or
securities (excluding any payment or distribution of Permitted Junior
Securities), upon any dissolution or winding-up or total liquidation or
reorganization of such Guarantor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all Guarantor
Senior Indebtedness of such Guarantor shall first be paid in full in cash
before the Holders of the Securities or the Trustee on behalf of such Holders
shall be entitled to receive any payment by such Guarantor of the
-72-
principal of or interest on the Securities pursuant to such Guarantor's
Guaranty, or any payment to acquire any of the Securities for cash, property
or securities, or any distribution with respect to the Securities of any
cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities). Before any payment may be made by, or on
behalf of, any Guarantor of the principal of or interest on the Securities
upon any such dissolution or winding-up or total liquidation or
reorganization, any payment or distribution of assets or securities of such
Guarantor of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities), to
which the Holders of the Securities or the Trustee on their behalf would be
entitled, but for the subordination provisions of this Indenture, shall be
made by such Guarantor or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, directly
to the holders of the Guarantor Senior Indebtedness of such Guarantor (PRO
RATA to such holders on the basis of the respective amounts of such Guarantor
Senior Indebtedness held by such holders) or their representatives or to the
trustee or trustees or agent or agents under any agreement or indenture
pursuant to which any of such Guarantor Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to
pay all such Guarantor Senior Indebtedness in full in cash after giving
effect to any prior or concurrent payment, distribution or provision therefor
to or for the holders of such Guarantor Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of any Guarantor of any kind or character, whether in
cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities), shall be received by the Trustee or any Holder
of Securities at a time when such payment or distribution is prohibited by
Section 12.03(a) and before all obligations in respect of the Guarantor
Senior Indebtedness of such Guarantor are paid in full in cash, such payment
or distribution shall be received and held in trust for the benefit of, and
shall be paid over or delivered to, the holders of such Guarantor Senior
Indebtedness (PRO RATA to such holders on the basis of the respective amounts
of such Guarantor Senior Indebtedness held by such holders) or their
respective representatives, or to the trustee or trustees or agent or agents
under any indenture pursuant to which any of such Guarantor Senior
Indebtedness may have been issued, as their respective interests may appear,
for application to the payment of such Guarantor Senior Indebtedness
remaining unpaid until all such Guarantor Senior Indebtedness has been paid
in full in cash after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Guarantor
Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution
of any Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article Five shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 12.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Five.
SECTION 12.04. SUBROGATION.
Upon the payment in full in cash of all Guarantor Senior
Indebtedness of a Guarantor, or provision for payment, the Holders of the
Securities shall be subrogated to the rights of the holders of such Guarantor
Senior Indebtedness to receive payments or distributions of cash, property or
securities of such Guarantor made on such Guarantor Senior Indebtedness until
the principal of and interest on the Securities shall be paid in full in
cash; and, for the purposes of such subrogation, no payments or distributions
to the holders of such Guarantor Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article Twelve,
and no payment over pursuant to the provisions of this Article Twelve to the
holders of such Guarantor Senior In-
-73-
debtedness by Holders of the Securities or the Trustee on their behalf shall,
as between such Guarantor, its creditors other than holders of such Guarantor
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by such Guarantor to or on account of such Guarantor Senior
Indebtedness. It is understood that the provisions of this Article Twelve
are and are intended solely for the purpose of defining the relative rights
of the Holders of the Securities, on the one hand, and the holders of
Guarantor Senior Indebtedness of each Guarantor, on the other hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article Twelve shall have been applied, pursuant to the provisions of this
Article Twelve, to the payment of all amounts payable under Guarantor Senior
Indebtedness, then and in such case, the Holders of the Securities shall be
entitled to receive from the holders of such Guarantor Senior Indebtedness
any payments or distributions received by such holders of Guarantor Senior
Indebtedness in excess of the amount required to make payment in full in cash
of such Guarantor Senior Indebtedness.
SECTION 12.05. OBLIGATIONS OF GUARANTORS UNCONDITIONAL.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Securities or the Guaranties is intended to or shall
impair, as among each of the Guarantors and the Holders of the Securities,
the obligation of each Guarantor, which is absolute and unconditional, to pay
to the Holders of the Securities the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with the terms of the Guaranty of such Guarantor, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of
any Guarantor other than the holders of Guarantor Senior Indebtedness of such
Guarantor, nor shall anything herein or therein prevent the Holder of any
Security or the Trustee on their behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Twelve of the holders of
Guarantor Senior Indebtedness in respect of cash, property or securities of
any Guarantor received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article Twelve shall restrict the right of the Trustee or
the Holders of Securities to take any action to declare the Securities to be
due and payable prior to their stated maturity pursuant to Section 6.01 or to
pursue any rights or remedies hereunder; PROVIDED, HOWEVER, that all
Guarantor Senior Indebtedness of any Guarantor then due and payable shall
first be paid in full before the Holders of the Securities or the Trustee are
entitled to receive any direct or indirect payment from such Guarantor of
principal of or interest on the Securities pursuant to such Guarantor's
Guaranty.
SECTION 12.06. NOTICE TO TRUSTEE.
The Company and each Guarantor shall give prompt written notice
to the Trustee of any fact known to the Company or such Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Twelve. The Trustee
shall not be charged with knowledge of the existence of any event of default
with respect to any Guarantor Senior Indebtedness or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and
until the Trustee shall have received notice in writing at its Corporate
Trust Office to that effect signed by an Officer of the Company or such
Guarantor, or by a holder of Guarantor Senior Indebtedness or trustee or
agent therefor; and prior to the receipt of any such written notice, the
Trustee shall, subject to Article Seven, be entitled to assume that no such
facts exist; PROVIDED, HOWEVER, that if the Trustee shall not have received
the notice provided for in this Section 12.06 at least two Business Days
prior to the date upon which by the terms
-74-
of this Indenture any moneys shall become payable for any purpose (including,
without limitation, the payment of the principal of or interest on any
Security), then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive any moneys from any Guarantor
and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on
or after such prior date. Nothing contained in this Section 12.06 shall limit
the right of the holders of Guarantor Senior Indebtedness to recover payments
as contemplated by Section 12.03. The Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Guarantor Senior Indebtedness (or a trustee on
behalf of, or other representative of, such holder) to establish that such
notice has been given by a holder of such Guarantor Senior Indebtedness or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Guarantor Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
Twelve, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 12.07. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article Twelve, the Trustee and the Holders of
the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or to
the Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Guarantor Senior
Indebtedness of such Guarantor and other indebtedness of such Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.08. TRUSTEE'S RELATION TO GUARANTOR SENIOR INDEBTEDNESS.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article Twelve with respect to any Guarantor Senior
Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee or any
Paying Agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article Twelve, and no
implied covenants or obligations with respect to the holders of Guarantor
Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Guarantor Senior Indebtedness (except as provided in Section 12.03(b)). The
Trustee shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other person cash, property or securities to which any
holders of Guarantor Senior Indebtedness shall be entitled by virtue of this
Article Twelve or otherwise.
-75-
SECTION 12.09. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
GUARANTORS OR HOLDERS OF GUARANTOR SENIOR INDEBTEDNESS.
No right of any present or future holders of any Guarantor
Senior Indebtedness to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by any Guarantor with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with. The provisions of this Article Twelve are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Guarantor Senior Indebtedness.
SECTION 12.10. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
GUARANTY.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve, and appoints the Trustee his
attorney-in-fact for such purposes, including, in the event of any
dissolution, winding-up, total liquidation or reorganization of any Guarantor
(whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of such Guarantor, the
filing of a claim for the unpaid balance of its or his Securities in the form
required in those proceedings.
SECTION 12.11. THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Twelve
shall not be construed as preventing the occurrence of an Event of Default
specified in clauses (a), (b) or (c) of Section 6.01.
SECTION 12.12. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Twelve shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
SECTION 12.13. NO WAIVER OF GUARANTY SUBORDINATION PROVISIONS.
Without in any way limiting the generality of Section 12.09, the
holders of Guarantor Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of Guarantor Senior Indebtedness, do any one or more of the
following: (a) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Guarantor Senior Indebtedness or any
instrument evidencing the same or any agreement under which Guarantor Senior
Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (c) release any Person liable in any manner
for the collection of Guarantor Senior Indebtedness; and (d) exercise or
refrain from exercising any rights against any Guarantor and any other Person.
-76-
SECTION 12.14. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions
described in Section 12.02, from making payments of principal of and interest
on the Securities, or from depositing with the Trustee any moneys for such
payments, or (ii) the application by the Trustee of any moneys deposited with
it for the purpose of making such payments of principal of and interest on
the Securities, to the holders entitled thereto unless at least two Business
Days prior to the date upon which such payment becomes due and payable, the
Trustee shall have received the written notice provided for in Section
12.02(b) or in Section 12.06. The Guarantors shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Guarantor.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable,
be governed by such provisions. If any provision of this Indenture modifies
any TIA provision that may be so modified, such TIA provision shall be deemed
to apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall
be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 13.02. NOTICES.
Any notice or communication shall be sufficiently given if in
writing and delivered in person, by facsimile and confirmed by overnight
courier, or mailed by first-class mail addressed as follows:
if to the Company or to the Guarantors:
Reliant Building Products Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
-77-
Xxxxx, Xxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
Bank One Trust Company, NA
c/o First Chicago Trust Company of New York
00 Xxxx Xxxxxx
0xx Xxxxx, Window 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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, first-class, postage
prepaid, to a Holder including any notice delivered in connection with TIA
Section 310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section
315(b), shall be mailed to him at his address as set forth on the Security
Register and shall be sufficiently given to him if so mailed within the time
prescribed. To the extent required by the TIA, any notice or communication
shall also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and any other
person shall have the protection of TIA Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
-78-
(1) an Officers' Certificate in form and substance satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 13.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.07. GOVERNING LAW.
The laws of the State of New York shall govern this Indenture,
the Securities and the Security Guarantees without regard to principles of
conflicts of law.
SECTION 13.08. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company or any Guarantor shall not have any liability for any obligations of
the Company or any Guarantor under the Securities, the Guaranty of such
Guarantor or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability.
-79-
SECTION 13.09. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of each Guarantor in this
Indenture and such Guarantor's Guaranty shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 13.10. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture, in the Securities or in
the Guaranty shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby, and a Holder shall have no claim therefor
against any party hereto.
SECTION 13.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13. LEGAL HOLIDAYS.
If a payment date is a not a Business Day at a place of payment,
payment may be made at that place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
[Signature Pages Follow]
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
RELIANT BUILDING PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
RBP OF ARIZONA, INC.
RBP CUSTOM GLASS, INC.
TIMBER TECH, INC.
RBP TRANS, INC.
RBP FENESCO, INC.
XXXXX BUILDERS SUPPLY COMPANY, INC.
RBP OF TEXAS, INC.,
as Guarantors
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
BANK ONE, COLUMBUS, NA, as Trustee
By: /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000 FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE
IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING
CAUSE (D), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUER AND
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-1
RELIANT BUILDING PRODUCTS, INC.
10 7/8% SENIOR SUBORDINATED NOTE
DUE MAY 1, 2004, SERIES A
CUSIP NO.:[ ]
NO. [ ] $[ ]
RELIANT BUILDING PRODUCTS, INC., a Delaware corporation and
formerly named Xxxxxx Building Products, Inc. (the "COMPANY", which term
includes any successor corporation), for value received promises to pay to
[ ] or registered assigns, the principal sum of [ ] Dollars,
on May 1, 2004.
Interest Payment Dates: May 1 and November 1, commencing on
November 1, 1997.
Interest Record DATES: April 15 and October 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officer.
RELIANT BUILDING PRODUCTS, INC.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
Dated: [ ]
A-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 7/8% Senior Subordinated Notes due May 1,
2004, Series A, described in the within-mentioned indenture.
Dated: [ ]
BANK ONE, COLUMBUS, NA,
as Trustee
By:___________________________________
Authorized Signatory
A-3
(REVERSE OF SECURITY)
RELIANT BUILDING PRODUCTS, INC.
10 7/8% SENIOR SUBORDINATED NOTE
DUE MAY 1, 2004, SERIES A
1. INTEREST.
RELIANT BUILDING PRODUCTS, INC., a Delaware corporation and
formerly named Xxxxxx Building Products, Inc. (the "COMPANY"), promises to
pay interest on the principal amount of this Security at the rate per annum
shown above. Cash interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
May 9, 1997. The Company will pay interest semi-annually in arrears on each
Interest Payment Date, commencing November 1, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The company shall pay interest on overdue principal from time
to time on demand and on overdue installments of interest (without regard to
any applicable grace periods) to the extent lawful from time to time on
demand, in each case at the rate borne by the securities
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the
close of business on the Interest Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Interest Record Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. LEGAL TENDER"). However, the Company may pay
principal and interest by wire transfer of Federal funds (provided that the
paying Agent shall have received wire instructions on or prior to the
relevant Interest Record Date), or interest by check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Bank One, Columbus, NA (the "TRUSTEE") will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Registrar.
4. INDENTURE AND GUARANTEES.
The Company issued the Securities under an Indenture, dated as
of May 9, 1997 (the "INDENTURE"), by and among the Company, the Guarantors
and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Company designated as its 10 7/8%
Senior Subordinated Notes due 2004, Series A (the "INITIAL SECURITIES"),
limited (except as otherwise provided in the Indenture) in aggregate
principal amount to
A-4
$70,000,000, Which may be issued under the Indenture. The Securities include
the Initial Securities, the Private Exchange Securities (as defined in the
indenture) and the Unrestricted Securities (as defined below) issued in
exchange for the Initial Securities pursuant to the Registration Rights
Agreement. The Initial Securities and the Unrestricted Securities are
treated as a single class of securities under the Indenture. The Terms of
the Securities 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) (the "TIA"), as in effect on the date of the
Indenture (except as otherwise indicated in the Indenture) until such time as
the Indenture is qualified under the TIA, and thereafter as in effect on the
date on which the indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such
terms, and holders of Securities are referred to the Indenture and the TIA
for a statement of them. The Securities are general unsecured obligations of
the Company. The Securities are subordinated in right of payment to all
Senior Indebtedness of the Company to the extent and in the manner provided
in the Indenture. Each Holder of a Security, by accepting a Security, agrees
to such subordination, authorizes the Trustee to give effect to such
subordination and appoints the Trustee as attorney-in-fact for such purpose.
Payment on the Securities is guaranteed (each, a "GUARANTY"),
on a senior subordinated basis, jointly and severally, by each Restricted
Subsidiary of the Company existing on the Issue Date (each, a "GUARANTOR")
pursuant to Article Eleven and Article Twelve of the Indenture. In addition,
the Indenture requires the Company to cause each Restricted Subsidiary
formed, created or acquired after the Issue Date to become a party to the
Indenture as a Guarantor and guarantee payment on the Securities pursuant to
Article Eleven and Article Twelve of the Indenture. In certain
circumstances, the Guaranties may be released.
5. OPTIONAL REDEMPTION.
The Securities will be redeemable at the option of the
Company, in whole or in part, at any time on or after May 1, 2001, at the
redemption prices (expressed as a percentage of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the Redemption
Date (subject to the right of holders of record on the relevant Interest
Record Date to receive interest due on the relevant Interest Payment Date) if
redeemed during the 12-month period commencing on May 1 of the years
indicated below:
Year Percentage
---- ----------
2001 105.438%
2002 102.719%
2003 and thereafter 100.000%
6. OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS.
In addition, at any time and from time to time on or prior to
May 1, 2000, the Company may redeem in the aggregate up to 35% of the
originally issued aggregate principal amount of the Securities with the net
cash proceeds of one or more Public Equity Offerings by Holdings (to the
extent that the net cash proceeds thereof are contributed to the equity
capital of the Company) or the Company after which there is a Public Market,
at a redemption price in cash equal to 110.875% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Interest
Record Date to receive interest due on the relevant Interest Payment Date);
PROVIDED, HOWEVER, that at least 65% of the originally issued aggregate
principal amount of the Securities must remain outstanding immediately after
giving effect to each such redemption (excluding any Securities held by the
Company or any of its Affiliates). Notice of any such redemption must be
given within 60 days after the date of the closing of the relevant Public
Equity Offering of Holdings or the Company.
A-5
7. OPTIONAL REDEMPTION UPON CHANGE OF CONTROL.
At any time on or prior to May 1, 2001, the Securities may be
redeemed as a whole at the option of the Company upon the occurrence of a
Change of Control (but in no event more than 90 days after the occurrence of
such Change of Control) at a redemption price equal to 100% of the principal
amount thereof, plus the Applicable Premium (as defined below) as of, and
accrued but unpaid interest, if any, to, the Redemption Date (subject to the
right of Holders of record on the relevant Interest Record Date to receive
interest due on the relevant Interest Payment Date).
"APPLICABLE PREMIUM" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the principal amount of such
Security and (ii) the excess of (A) the present value at such time of (1) the
redemption price of such Security at May 1, 2001 (such redemption price being
described under paragraph 5 of this Security), PLUS (2) all required interest
payments (excluding accrued but unpaid interest) due on such Security through
May 1, 2001, computed using a discount rate equal to the Treasury Rate (as
defined below) plus 75 basis points, over (B) the then-outstanding principal
amount of such Security.
"TREASURY RATE" means the yield to maturity at the time of
computation of United States treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical
Release H.15(519) which has become publicly available at least two Business Days
prior to the Redemption Date (or, if such Statistical Release is no longer
published, any publicly available source or similar market data)) most nearly
equal to the period from the Redemption Date to May 1, 2001; PROVIDED,
HOWEVER, that if the period from the Redemption Date to May 1, 2001 is not
equal to the constant maturity of a United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly average yields of United States Treasury securities for which such
yields are given, except that if the period from the Redemption Date to May 1,
2001 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
8. 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
Securities to be redeemed at its registered address. The Trustee may select
for redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities
and portions of them the Trustee so selects shall be in amounts of $1,000
principal amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal
amount equal to the unredeemed portion thereof will be issued in the name of
the Holder thereof upon cancellation of the original Security. On and after
the Redemption Date, interest will cease to accrue on Securities or portions
thereof called for redemption so long as the Company has deposited with the
Paying Agent for the Securities funds in satisfaction of the redemption price
pursuant to the Indenture and the Paying Agent is not prohibited from paying
such funds to the Holders pursuant to the terms of the Indenture.
9. CHANGE OF CONTROL OFFER.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall, unless the
Company shall have elected to redeem the Notes
A-6
prior to May 1, 2001 upon a Change of Control as permitted by paragraph 7 of
this Security, within 20 days after the Change of Control Date, make an Offer
to Purchase all Securities then outstanding at a purchase price in cash equal
to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date (subject to the right of
Holders of record on the relevant Interest Record Date to receive interest
due on the relevant Interest Payment Date).
10. LIMITATION ON DISPOSITION OF ASSETS.
The Company is, subject to certain conditions, obligated to make an
Offer to Purchase Securities at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the Purchase Date (subject to the right of Holders of record on the
Interest Relevant Record Date to receive interest due on the relevant
Interest Payment Date) with the proceeds of certain asset dispositions.
11. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in
part.
12. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
13. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
14. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company and the Guarantors may be discharged from their
obligations under the Indenture, the Securities and the Guaranties, except
for certain provisions thereof, and may be discharged from obligations to
comply with certain covenants contained in the Indenture, the Securities and
the Guaranties, in each case upon satisfaction of certain conditions
specified in the Indenture.
15. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture, the Securities and the
Guaranties may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders
of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture, the Securities and the Guaranties to,
among other things, cure any ambiguity, defect
A-7
or inconsistency, provide for uncertificated Securities in addition to or in
place of certificated Securities or comply with any requirements of the SEC
in connection with the qualification of the Indenture under the TIA, or make
any other change that does not materially adversely affect the rights of any
Holder of a Security.
16. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets,
to permit restrictions on dividends and other payments by Restricted
Subsidiaries to the Company, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates or
certain other related persons or to engage in certain businesses. the
limitations are subject to a number of important qualifications and
exceptions. The Company must report quarterly to the Trustee on compliance
with such limitations.
17. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately
in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture, the Securities or the Guaranties
except as provided in the Indenture. The Trustee is not obligated to enforce
the Indenture, the Securities or the Guaranties unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of certain continuing Defaults or Events of Default if it
determines that withholding notice is in their interest.
18. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates as if
it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer, employee or incorporator, as
such, of the Company or any Guarantor shall have any liability for any
obligation of the Company or any Guarantor under the Securities, the Guaranty
of such Guarantor or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities and the Guaranties.
20. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
A-8
21. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
22. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to
be printed on the Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
23. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange
offer pursuant to which the Holder of this Security shall have the right to
exchange this Security for a 10 7/8% Senior Subordinated Note due 2004,
Series B, of the Company (an "UNRESTRICTED SECURITY") which have been
registered under the Securities Act, in like principal amount and having
terms identical in all material respects to the Initial Securities. The
Holders shall be entitled to receive certain additional interest payments in
the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
24. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture, this
Security and any Guaranty thereof without regard to principles of conflicts
of laws.
A-9
[FORM OF SECURITY GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby unconditionally
guarantees on a senior subordinated basis (such guaranty by the Guarantor
being referred to herein as the "Guaranty") the due and punctual payment of
the principal of, premium, if any, and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, premium and interest on the Securities,
and the due and punctual performance of all other obligations of the Company
to the Holders or the Trustee, all in accordance with the terms set forth in
Article Eleven of the Indenture.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guaranty and the Indenture are expressly set
forth, and are expressly subordinated and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness (as defined in the
Indenture) of such Guarantor, to the extent and in the manner provided in
Article Eleven and Article Twelve of the Indenture, and reference is hereby
made to such Indenture for the precise terms of the Guaranty therein made.
This Security Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Security Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.
This Security Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to
principles of conflicts of law.
This Security Guarantee is subject to release upon the terms set
forth in the Indenture.
RBP OF ARIZONA, INC.
RBP CUSTOM GLASS, INC.
TIMBER TECH, INC.
RBP TRANS, INC.
RBP FENESCO, INC.
XXXXX BUILDERS SUPPLY COMPANY, INC.
RBP OF TEXAS, INC.
By:
------------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------------------ -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
SIGNATURE GUARANTEE:
---------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantee
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $
--------------
Dated: Signed:
------------------------ -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
SIGNATURE GUARANTEE:
---------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantee
program reasonably acceptable to the Trustee)
EXHIBIT B
[FORM OF SERIES B SECURITY]
RELIANT BUILDING PRODUCTS, INC.
10 7/8% Senior Subordinated Note
due May 1, 2004, Series B
CUSIP No.:[ ]
No. [ ] $[ ]
RELIANT BUILDING PRODUCTS, INC., a Delaware corporation and formerly
named Xxxxxx Building Products, Inc. (the "COMPANY", which term includes any
successor corporation), for value received promises to pay to [ ] or
registered assigns, the principal sum of [ ] Dollars, on May 1, 2004.
Interest Payment Dates: May 1 and November 1, commencing on
November 1, 1997.
Interest Record Dates: April 15 and October 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officer.
RELIANT BUILDING PRODUCTS, INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Dated: [ ]
B-1
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 7/8% Senior Subordinated Notes due May 1, 2004,
Series B, described in the within-mentioned Indenture.
Dated: [ ]
BANK ONE, COLUMBUS, NA,
as Trustee
By:
---------------------------------
Authorized Signatory
B-2
(REVERSE OF SECURITY)
RELIANT BUILDING PRODUCTS, INC.
10 7/8% Senior Subordinated Note
due May 1, 2004, Series B
1. INTEREST.
RELIANT BUILDING PRODUCTS, INC., a Delaware corporation and formerly
named Xxxxxx Building Products, Inc. (the "COMPANY"), promises to pay
interest on the principal amount of this security at the rate per annum shown
above. Cash interest on the Securities will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from May 9,
1997. The Company will pay interest semi-annually in arrears on each
Interest Payment Date, commencing November 1, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand,
in each case at the rate borne by the Securities
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Interest Record Date immediately preceding the Interest
Payment Date even if the Securities are cancelled on registration of transfer
or registration of exchange after such interest Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private
debts ("U.S. LEGAL TENDER"). However, the Company may pay principal and
interest by wire transfer of Federal funds (provided that the Paying Agent
shall have received wire instructions on or prior to the relevant Interest
Record Date), or interest by check payable in such U.S. Legal Tender. the
Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Bank One, Columbus, NA (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Registrar.
4. INDENTURE AND GUARANTEES.
The Company issued the Securities under an Indenture, dated as of
May 9, 1997 (the "INDENTURE"), by and among the Company, the Guarantors and
the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. This Security is one of a duly authorized
issue of Securities of the Company designated as its 10 7/8% Senior
Subordinated Notes due 2004, Series B (the "UNRESTRICTED SECURITIES"),
limited (except as otherwise provided in the Indenture) in aggregate principal
B-3
amount to $70,000,000, which may be issued under the Indenture. The
Securities include the 10 7/8% Senior Subordinated Notes due 2004, Series A
(the "INITIAL SECURITIES"), the Private Exchange Securities (as defined in
the Indenture) and the Unrestricted Securities. The Initial Securities, the
Private Exchange Securities and the Unrestricted Securities are treated as a
single class of securities under the Indenture. The terms of the Securities
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) (the "TIA"), as in effect on the date of the Indenture (except
as otherwise indicated in the Indenture) until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and holders of
Securities are referred to the Indenture and the TIA for a statement of them.
The Securities are general unsecured obligations of the Company. The
Securities are subordinated in right of payment to all Senior Indebtedness of
the Company to the extent and in the manner provided in the Indenture. Each
Holder of a Security, by accepting a Security, agrees to such subordination,
authorizes the Trustee to give effect to such subordination and appoints the
Trustee as attorney-in-fact for such purpose.
Payment on the Securities is guaranteed (each, a "GUARANTY"), on a
senior subordinated basis, jointly and severally, by each Restricted
Subsidiary of the Company existing on the Issue Date (each, a "GUARANTOR")
pursuant to Article Eleven and Article Twelve of the Indenture. In addition,
the Indenture requires the Company to cause each Restricted Subsidiary
formed, created or acquired after the Issue Date to become a party to the
Indenture as a Guarantor and guarantee payment on the Securities pursuant to
Article Eleven and Article Twelve of the Indenture. In certain
circumstances, the Guaranties may be released.
5. OPTIONAL REDEMPTION.
The Securities will be redeemable at the option of the Company, in
whole or in part, at any time on or after May 1, 2001, at the redemption
prices (expressed as a percentage of principal amount) set forth below, plus
accrued and unpaid interest thereon, if any, to the Redemption Date (subject
to the right of holders of record on the relevant Interest Record Date to
receive interest due on the relevant Interest Payment date) if redeemed
during the 12-month period commencing on May 1 of the years indicated below:
Year Percentage
---- ----------
2001 105.438%
2002 102.719%
2003 and thereafter 100.000%
6. OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS.
In addition, at any time and from time to time on or prior to May 1,
2000, the Company may redeem in the aggregate up to 35% of the originally
issued aggregate principal amount of the Securities with the net cash
proceeds of one or more Public Equity Offerings by Holdings (to the extent
that the net cash proceeds thereof are contributed to the equity capital of
the Company) or the Company after which there is a Public Market, at a
redemption price in cash equal to 110.875% of the principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Interest Record
Date to receive interest due on the relevant Interest Payment Date);
PROVIDED, HOWEVER, that at least 65% of the originally issued aggregate
principal amount of the Securities must remain outstanding immediately after
giving effect to each such redemption (excluding any Securities held by the
Company or any of its Affiliates). Notice of any such redemption must be
given within 60 days after the date of the closing of the relevant Public
Equity Offering of Holdings or the Company.
B-4
7. OPTIONAL REDEMPTION UPON CHANGE OF CONTROL.
At any time on or prior to May 1, 2001, the Securities may be redeemed
as a whole at the option of the Company upon the occurrence of a Change of
Control (but in no event more than 90 days after the occurrence of such Change
of Control) at a redemption price equal to 100% of the principal amount thereof,
plus the Applicable Premium (as defined below) as of, and accrued but unpaid
interest, if any, to, the Redemption Date (subject to the right of Holders of
record on the relevant Interest Record Date to receive interest due on the
relevant Interest Payment Date).
"APPLICABLE PREMIUM" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the principal amount of such
Security and (ii) the excess of (A) the present value at such time of (1) the
redemption price of such Security at May 1, 2001 (such redemption price being
described under paragraph 5 of this Security), PLUS (2) all required interest
payments (excluding accrued but unpaid interest) due on such Security through
May 1, 2001, computed using a discount rate equal to the Treasury Rate (as
defined below) plus 75 basis points, over (B) the then-outstanding principal
amount of such Security.
"TREASURY RATE" means the yield to maturity at the time of computation
of United States treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two Business Days prior to the Redemption
Date (or, if such Statistical Release is no longer published, any publicly
available source or similar market data)) most nearly equal to the period from
the Redemption Date to May 1, 2001; PROVIDED, HOWEVER, that if the period from
the Redemption Date to May 1, 2001 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from the Redemption Date to May 1, 2001 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
8. 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
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal
amount equal to the unredeemed portion thereof will be issued in the name of
the Holder thereof upon cancellation of the original Security. On and after
the Redemption Date, interest will cease to accrue on Securities or portions
thereof called for redemption so long as the Company has deposited with the
Paying Agent for the Securities funds in satisfaction of the redemption price
pursuant to the Indenture and the Paying Agent is not prohibited from paying
such funds to the Holders pursuant to the terms of the Indenture.
9. CHANGE OF CONTROL OFFER.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall, unless the
Company shall have elected to redeem the Notes
B-5
prior to May 1, 2001 upon a Change of Control as permitted by paragraph 7 of
this Security, within 20 days after the Change of Control Date, make an Offer
to Purchase all Securities then outstanding at a purchase price in cash equal
to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date (subject to the right of
Holders of record on the relevant Interest Record Date to receive interest
due on the relevant Interest Payment Date).
10. LIMITATION ON DISPOSITION OF ASSETS.
The Company is, subject to certain conditions, obligated to make an
Offer to Purchase Securities at a purchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Purchase Date (subject to the right of Holders of record on the Interest
Relevant Record Date to receive interest due on the relevant Interest Payment
Date) with the proceeds of certain asset dispositions.
11. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
12. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
13. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to the Company
at its written request. After that, all liability of the Trustee and such
Paying Agent with respect to such funds shall cease.
14. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company and the Guarantors may be discharged from their obligations
under the Indenture, the Securities and the Guaranties, except for certain
provisions thereof, and may be discharged from obligations to comply with
certain covenants contained in the Indenture, the Securities and the Guaranties,
in each case upon satisfaction of certain conditions specified in the Indenture.
15. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture, the Securities and the
Guaranties may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture, the Securities and the Guaranties to, among other things, cure
any ambiguity, defect
B-6
or inconsistency, provide for uncertificated Securities in addition to or in
place of certificated Securities or comply with any requirements of the SEC in
connection with the qualification of the Indenture under the TIA, or make any
other change that does not materially adversely affect the rights of any Holder
of a Security.
16. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
to the Company, to consolidate, merge or sell all or substantially all of its
assets, to engage in transactions with affiliates or certain other related
persons or to engage in certain businesses. The limitations are subject to a
number of important qualifications and exceptions. The Company must report
quarterly to the Trustee on compliance with such limitations.
17. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture, the Securities or the Guaranties except as
provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Securities or the Guaranties unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.
18. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
19. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer, employee or incorporator, as such,
of the Company or any Guarantor shall have any liability for any obligation of
the Company or any Guarantor under the Securities, the Guaranty of such
Guarantor or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of a Security by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities and the Guaranties.
20. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
B-7
21. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), AND U/G/M/A (= Uniform Gifts
to Minors Act).
22. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
23. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture, this
Security and any Guaranty thereof without regard to principles of conflicts of
laws.
B-8
[FORM OF SECURITY GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (as defined in the Indenture referred to in the Security
upon which this notation is endorsed) hereby unconditionally guarantees on a
senior subordinated basis (such guaranty by the Guarantor being referred to
herein as the "Guaranty") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guaranty and the Indenture are expressly set forth,
and are expressly subordinated and subject in right of payment to the prior
payment in full of all Guarantor Senior Indebtedness (as defined in the
Indenture) of such Guarantor, to the extent and in the manner provided in
Article Eleven and Article Twelve of the Indenture, and reference is hereby made
to such Indenture for the precise terms of the Guaranty therein made.
This Security Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Security Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
This Security Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Security Guarantee is subject to release upon the terms set forth
in the Indenture.
RBP OF ARIZONA, INC.
RBP CUSTOM GLASS, INC.
TIMBER TECH, INC.
RBP TRANS, INC.
RBP FENESCO, INC.
XXXXX BUILDERS SUPPLY COMPANY, INC.
RBP OF TEXAS, INC.
By:
-----------------------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
-------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
DATED: SIGNED:
------------------- ---------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $
-------------
Dated: Your Signature:
------------------- ----------------------------------
(Signed exactly as name appears on
the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE 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
CERTIFICATE 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 SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
RE: 10 7/8% Senior Subordinated Notes due 2004
(THE "SECURITIES"), OF RELIANT BUILDING PRODUCTS, INC.
This Certificate relates to $_______ principal amount of Securities
held in the form of* ___ a beneficial interest in a Global Security or* _______
Physical Securities by ______ (the "TRANSFEROR").
The Transferor:*
/ / has requested by written order that the Registrar deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Physical Security or Physical Securities in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
/ / has requested that the Registrar by written order to exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Securities does not require Registration under the Securities
Act of 1933, as amended (the "ACT"), because*:
/ / Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
/ / Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
EXHIBIT E to the Indenture.
/ / Such Security is being transferred in reliance on Rule 144 under the
Act.
/ / Such Security is being transferred in reliance on and in compliance
with an exemption from the Registration requirements of the Act other than Rule
144A or Rule 144 under the Act to a person other than an institutional
"accredited investor." [An Opinion of Counsel to the effect that such transfer
does not require Registration under the Securities Act accompanies this
certification.]
______________________________
[INSERT NAME OF TRANSFEROR]
By: __________________________
[Authorized Signatory]
Date: _____________
*Check applicable box.
D-1
EXHIBIT E
FORM OF TRANSFEREE LETTER OF REPRESENTATION
Reliant Building Products, Inc.
c/o Bank One Trust Company, N.A.
c/o First Chicago Trust Company of New York
00 Xxxx Xxxxxx
0xx Xxxxx, Window 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administrator
Dear Sirs:
This certificate is delivered to request a transfer of $________
principal amount of the 10 7/8% Senior Subordinated Notes due 2004 (the "Notes")
of Reliant Building Products, Inc. (the "Company"). Upon transfer, the Notes
would be registered in the name of the new beneficial owner as follows:
Name:
---------------------------------------
Address:
------------------------------------
Taxpayer ID Number:
-------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the "Securities
Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Notes and we
invest in or purchase securities similar to the Notes in the normal course of
our business. We and any accounts for which we are acting are each able to bear
the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes to offer, sell or otherwise
transfer such Notes prior to the date which is two years after the later of the
date of original issue and the last date on which the Company or any affiliate
of the Company was the owner of such Notes (or any predecessor thereto) (the
"RESALE RESTRICTION TERMINATION DATE") only (a) to the Company, (b) pursuant to
a registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act, that is
E-1
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Notes of
$250,000 or (e) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to
be made pursuant to clause (d) above prior to the Resale Restriction Termination
Date, the transferor shall deliver a letter from the transferee substantially in
the form of this letter to the Company and the Trustee, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and that it is acquiring such Notes for investment purposes and
not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the Notes pursuant to clause (d) or (e) above to require the delivery of an
opinion of counsel, certificates and/or other information satisfactory to the
Company and the Trustee.
Dated: ______________________ TRANSFEREE: _________________________
By: ____________________________________
E-2