Exhibit 4.1
Rose Hills Acquisition Corp., as Issuer
and
United States Trust Company of New York, as Trustee
INDENTURE
Dated as of November 15, 1996
$80,000,000
9 1/2% Senior Subordinated Notes due 2004
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act..............23
SECTION 1.03. Rules of Construction..........................................24
ARTICLE 2
THE NOTES
SECTION 2.01. Forms and Dating...............................................24
SECTION 2.02. Execution and Authentication...................................26
SECTION 2.03. Registrar and Paying Agent.....................................26
SECTION 2.04. Paying Agent to Hold Money in Trust............................27
SECTION 2.05. Noteholder Lists...............................................27
SECTION 2.06. Transfer and Exchange..........................................28
SECTION 2.07. Replacement Notes..............................................28
SECTION 2.08. Outstanding Notes..............................................29
SECTION 2.09. Book-Entry Provisions for Global Note..........................29
SECTION 2.10. Restrictive Legends............................................31
SECTION 2.11. Special Transfer Provisions....................................33
SECTION 2.12. Treasury Notes.................................................35
SECTION 2.13. Temporary Notes................................................35
SECTION 2.14. Cancellation...................................................35
SECTION 2.15. Defaulted Interest.............................................36
SECTION 2.16. Cusip Number...................................................36
SECTION 2.17. Deposit of Moneys..............................................36
SECTION 2.18. Form of Certificate to Be Delivered............................37
ARTICLE 3
SECTION 3.01. Notices to the Trustee.........................................40
SECTION 3.02. Selection of Notes to Be Redeemed..............................40
SECTION 3.03. Notice of Redemption...........................................41
SECTION 3.04. Effect of Notice of Redemption.................................42
SECTION 3.05. Deposit of Redemption Price....................................42
SECTION 3.06. Notes Redeemed or Purchased in Part............................42
SECTION 3.07. Special Redemption.............................................42
ARTICLE 4
COVENANTS
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SECTION 4.01. Payment of Notes...............................................43
SECTION 4.02. Maintenance of Office or Agency................................43
SECTION 4.03. Corporate Existence............................................44
SECTION 4.04. Payment of Taxes and Other Claims..............................44
SECTION 4.05. Maintenance of Properties; Books and Records;
Compliance with Law...........................................................45
SECTION 4.06. Compliance Certificate.........................................45
SECTION 4.07. SEC Reports....................................................46
SECTION 4.08. Limitation on Indebtedness.....................................46
SECTION 4.09. Limitation on Restricted Payments..............................49
SECTION 4.10. Limitation on Issuances and Sale of Preferred Stock by
Subsidiaries..................................................................53
SECTION 4.11. Limitation on Liens............................................54
SECTION 4.12. Change of Control..............................................54
SECTION 4.13. Disposition of Proceeds of Asset Sales.........................56
SECTION 4.14. Limitation on Transactions with Interested Persons.............59
SECTION 4.15. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries........................................................61
SECTION 4.16. Limitation on the Issuance of Other Senior Subordinated
Indebtedness..................................................................62
SECTION 4.17. Limitations on Sale-Leaseback Transactions.....................62
SECTION 4.18. Waiver of Stay, Extension or Usury Laws........................62
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc....................................63
SECTION 5.02. Successor Substituted..........................................64
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default..............................................65
SECTION 6.02. Acceleration...................................................66
SECTION 6.03. Other Remedies.................................................67
SECTION 6.04. Waiver of Past Defaults........................................68
SECTION 6.05. Control by Majority............................................68
SECTION 6.06. Limitation on Suits............................................68
SECTION 6.07. Right of Holders to Receive Payment............................69
SECTION 6.08. Collection Suit by Trustee.....................................69
SECTION 6.09. Trustee May File Proofs of Claims..............................69
SECTION 6.10. Priorities.....................................................70
SECTION 6.11. Undertaking for Costs..........................................70
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SECTION 6.12. Restoration of Rights and Remedies.............................71
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties.........................................................71
SECTION 7.02. Rights of Trustee..............................................72
SECTION 7.03. Individual Rights of Trustee...................................73
SECTION 7.04. Trustee's Disclaimer...........................................73
SECTION 7.05. Notice of Default..............................................74
SECTION 7.06. Money Held in Trust............................................74
SECTION 7.07. Reports by Trustee to Holders..................................74
SECTION 7.08. Compensation and Indemnity.....................................74
SECTION 7.09. Replacement of Trustee.........................................75
SECTION 7.10. Successor Trustee by Merger, Etc...............................77
SECTION 7.11. Eligibility; Disqualification..................................77
SECTION 7.12. Preferential Collection of Claims Against Company..............77
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations.......................77
SECTION 8.02. Legal Defeasance and Covenant Defeasance.......................79
SECTION 8.03. Application of Trust Money.....................................83
SECTION 8.04. Repayment to Company...........................................83
SECTION 8.05. Reinstatement..................................................83
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.....................................84
SECTION 9.02. With Consent of Holders........................................84
SECTION 9.03. Compliance with Trust Indenture Act............................86
SECTION 9.04. Revocation and Effect of Consents..............................86
SECTION 9.05. Notation on or Exchange of Notes...............................87
SECTION 9.06. Trustee May Sign Amendments, Etc...............................87
ARTICLE 10
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinate to Senior Indebtedness......................87
SECTION 10.02. Payment over of Proceeds upon Dissolution.....................88
SECTION 10.03. Suspension of Payment When Senior Indebtedness
in Default....................................................................89
SECTION 10.04. Trustee's Relation to Senior Indebtedness.....................91
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SECTION 10.05. Subrogation to Rights of Holders of Senior Indebtedness.......91
SECTION 10.06. Provisions Solely to Define Relative Rights...................92
SECTION 10.07. Trustee to Effectuate Subordination...........................92
SECTION 10.08. No Waiver of Subordination Provisions.........................93
SECTION 10.09. Notice to Trustee.............................................93
SECTION 10.10. Reliance on Judicial Order or Certificate of Liquidating
Agent.........................................................................94
SECTION 10.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights..............................................95
SECTION 10.12. Article Applicable to Paying Agents...........................95
SECTION 10.13. No Suspension of Remedies.....................................95
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939...................................96
SECTION 11.02. Notices.......................................................96
SECTION 11.03. Communication by Holders with Other Holders...................97
SECTION 11.04. Certificate and Opinion as to Conditions Precedent............97
SECTION 11.05. Statements Required in Certificate or Opinion.................98
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.....................98
SECTION 11.07. Governing Law.................................................98
SECTION 11.08. No Interpretation of Other Agreements.........................99
SECTION 11.09. No Recourse Against Others....................................99
SECTION 11.10. Successors....................................................99
SECTION 11.11. Duplicate Originals...........................................99
SECTION 11.12. Separability..................................................99
SECTION 11.13. Table of Contents, Headings, Etc..............................99
SECTION 11.14. Benefits of Indenture........................................100
EXHIBIT A Form of Global Note
EXHIBIT B Form of Physical Note
EXHIBIT C Option of Holder to Elect Purchase Form
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INDENTURE, dated as of November 15, 1996 between Rose Hills Acquisition
Corp. (to be renamed Rose Hills Company), a corporation incorporated under the
laws of the State of Delaware ("the Company"), and United States Trust Company
of New York, a New York corporation, 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 Company's 9 1/2%
Senior Subordinated Notes due 2004 (including the Initial Notes and the Exchange
Notes (as hereinafter defined), the "Notes").
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
"Accredited Investor" shall have the meaning set forth in Section 2.10.
"Acquisition Transaction" shall refer collectively to the acquisition
of Roses, Inc. and its Subsidiaries through the merger of a Subsidiary of the
Company with and into Roses, Inc., the acquisition of the cemetery related
assets and liabilities of Rose Hills Memorial Park Association by a Subsidiary
of the Company, the contribution by a Subsidiary of Xxxxxx Group International
Inc. ("LGII") to Rose Hills Holdings Corp. ("RH Holdings"), the parent of the
Company, by RH Holdings to the Company, and by the Company to certain of its
Subsidiaries, of 14 additional funeral homes and two combination funeral home
and cemetery properties currently owned or leased by LGII or its Affiliates, the
initial borrowing under the Bank Credit Facilities (as defined in this
Indenture) and the issuance and sale of the Notes.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Asset Acquisition from such Person or (b) existing at the
time such Person becomes a Subsidiary of any other Person.
"Acquisition Closing Date" means the closing date of the Acquisition
Transaction.
"Administrative Services Agreement" means the Administrative Services
Agreement, to be dated on or about the Acquisition Closing Date, between the
Company and Xxxxxx Group International, Inc., as the same may be amended,
supplemented or otherwise modified from time to time.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person.
"Agent" means any Registrar or Paying Agent of the Notes.
"Agent Members" has the meaning set forth in Section 2.09.
"Asset Acquisition" means (a) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or any Subsidiary of the Company, or
shall be merged with or into the Company or any Subsidiary of the Company, (b)
the acquisition by the Company or any Subsidiary of the Company of the assets of
any Person (other than a Subsidiary of the Company) which constitute all or
substantially all of the assets of such Person or (c) the acquisition by the
Company or any Subsidiary of the Company of any division or line of business of
any Person (other than a Subsidiary of the Company).
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease or other disposition to any Person other than the Company or a
Subsidiary of the Company, in one or a series of related transactions, of (a)
any Capital Stock of any Subsidiary of the Company (other than in respect of
director's qualifying shares or investments by foreign nationals mandated by
applicable law); (b) all or substantially all of the properties and assets of
any division or line of business of the Company or any Subsidiary of the
Company; or (c) any other properties or assets of the Company or any Subsidiary
of the Company other than in the ordinary course of business. For the purposes
of this definition, the term "Asset Sale" shall not include (i) any sale,
transfer or other disposition of equipment, tools or other assets (including
Capital Stock of any Subsidiary of the Company) by the Company or any of its
Subsidiaries in one or a series of related transactions in respect of which the
Company or such Subsidiary receives cash or property with an aggregate Fair
Market Value of $10,000,000 or less; (ii) a disposition by a Subsidiary to the
Company or a Wholly-Owned Subsidiary of the Company and (iii) any sale,
issuance, conveyance, transfer, lease or other disposition of properties or
assets that is governed by the provisions of Article 5 hereof.
"Asset Sale Offer" shall have the meaning set forth in Section
4.13.
"Asset Sale Offer Price" shall have the meaning set forth in Section
4.13.
"Asset Sale Purchase Date" shall have the meaning set forth in Section
4.13.
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"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capitalized Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during the
initial term thereof as determined in accordance with GAAP, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capitalized Lease
Obligation with a like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the case
of any lease which is terminable by the lessee upon the payment of a penalty,
such net amount shall also include the amount of such penalty, but no rent shall
be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated. "Attributable Value" means, as to a
Capitalized Lease Obligation under which any Person is at the time liable and at
any date as of which the amount thereof is to be determined, the capitalized
amount thereof that would appear on the face of a balance sheet of such Person
in accordance with GAAP.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years (or any fraction thereof)
from such date to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"Bank Agent" means The Bank of Nova Scotia, as administrative agent
under the Bank Credit Agreement and any successor agent.
"Bank Credit Agreement" means the Credit Agreement, to be dated on or
about the Acquisition Closing Date, among the Company, as borrower, RH Holdings
as guarantor, the Lenders referred to therein, the Bank Agent, and Xxxxxxx,
Xxxxx & Co., as arranging agent and syndication agent, and all promissory notes,
guarantees, security agreements, pledge agreements, deeds of trust, mortgages,
letters of credit and other instruments, agreements and documents executed
pursuant thereto or in connection therewith, in each case as the same may be
amended, supplemented, restated, renewed, refinanced, replaced or otherwise
modified (in whole or in part and without limitation as to amount, terms,
conditions, covenants or other provisions) from time to time.
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"Bank Credit Facilities" means, collectively, the Bank Term Facility
and the Revolving Credit Facility under the Bank Credit Agreement.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any similar law
for the relief of debtors.
"Bank Term Facility" means the $75.0 million senior secured term loan
facility under the Bank Credit Agreement, which may be increased by up to $25.0
million in accordance with the terms of the Bank Credit Agreement.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
State of New York, are authorized or obligated by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation under a lease of
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of Indebtedness
with a maturity of 365 days or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) certificates of deposit or acceptances with a
maturity of 365 days or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of not
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less than $500,000,000; (iii) certificates of deposit with a maturity of 365
days or less of any financial institution that is not organized under the laws
of the United States, any state thereof or the District of Columbia that are
rated at least A-2 by S&P or at least P-2 by Xxxxx'x or at least an equivalent
rating category of another nationally recognized securities rating agency; (iv)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the government of the
United States of America or issued by any agency thereof and backed by the full
faith and credit of the United States of America, in each case maturing within
365 days from the date of acquisition; provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions With Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985; (v) other than
with respect to the subordination provisions contained in Article 10, notes held
by the Company or any Subsidiary which were obtained by the Company or such
Subsidiary in connection with Asset Sales (x) in the ordinary course of its
funeral home, cemetery or cremation businesses or (y) which were required to be
made pursuant to applicable federal or state law and (vi) with respect to moneys
held in the escrow account pursuant to the Escrow Agreement, Eligible
Investments (as defined in the Escrow Agreement).
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), excluding Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
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), directly or indirectly, of more than 35% of the total
Voting Stock of RH Holdings, under circumstances where the Permitted Holders (i)
"beneficially own" (as so defined) in the aggregate a lower percentage of the
Voting Stock than such other Person or "group" and (ii) 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 RH Holdings; (b) RH Holdings
consolidates with, or merges with or into, another Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to another Person, or another Person consolidates with, or merges
with or into, RH Holdings, in any such event pursuant to a transaction in which
the outstanding Voting Stock of RH Holdings is converted into or exchanged for
cash, securities or other property, other than any such transaction where (i)
the outstanding Voting Stock of RH Holdings is converted into or exchanged for
(1) Voting Stock (other than Redeemable Capital Stock) of the surviving or
transferee corporation or (2) cash, securities and other property in an amount
which could then be paid by the Company as a Restricted
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Payment under this Indenture, or a combination thereof, and (ii) immediately
after such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted Holders, is
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of all
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), directly or indirectly, of more than 50% of the total
Voting Stock of the surviving or transferee corporation; (c) at any time during
any consecutive two-year period, individuals who at the beginning of such period
constituted the Board of Directors of RH Holdings (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of RH Holdings was approved by a vote of 66-2/3% of
the directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of RH Holdings then in office; or (d) RH Holdings is liquidated or
dissolved or adopts a plan of liquidation.
"Change of Control Date" shall have the meaning set forth in Section
4.12.
"Change of Control Offer" shall have the meaning set forth in Section
4.12.
"Change of Control Purchase Date" shall have the meaning set forth in
Section 4.12.
"Closing Date" means the later of the Issue Date and the Acquisition
Closing Date.
"Common Stock" means, with respect to any Person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such Person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture, and thereafter means such
successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Vice-Chairman, its Chief Executive Officer, its President, an Executive Vice
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President or a Vice President, and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (a) Consolidated Net Income, (b) Consolidated
Non-cash Charges, (c) Consolidated Interest Expense and (d) Consolidated Income
Tax Expense.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of the aggregate amount of Consolidated Cash Flow of such
Person for the four full fiscal quarters immediately preceding the date of the
transaction (the "Transaction Date") giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio (such four full fiscal quarter period
being referred to herein as the "Four Quarter Period") to the aggregate amount
of Consolidated Fixed Charges of such Person for the Four Quarter Period. In
addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated Cash Flow" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to, without duplication, (a) the incurrence of any Indebtedness of
such Person or any of its Subsidiaries (and the application of the net proceeds
thereof) during the period commencing on the first day of the Four Quarter
Period to and including the Transaction Date (the "Reference Period"),
including, without limitation, the incurrence of the Indebtedness giving rise to
the need to make such calculation (and the application of the net proceeds
thereof), as if such incurrence (and application) occurred on the first day of
the Reference Period, and (b) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including any
Person who becomes a Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness) occurring during
the Reference Period, as if such Asset Sale or Asset Acquisition occurred on the
first day of the Reference Period. In calculating the incremental "Consolidated
Cash Flow" attributable to Asset Acquisitions occurring during the Reference
Period, pro forma effect will be given to (i) adjustments which, on the basis of
written advice provided to the Company by a "big six" accounting firm, should be
permitted by Article 11 of Regulation S-X of the Commission (provided, however,
that the Company shall deliver to the Trustee an Officers' Certificate
certifying the receipt of such written advice and summarizing the adjustments
permitted under this clause (i)) and (ii) incremental revenue resulting from
changes in the investment strategy with respect to any related endowment care
fund which, in the case of both clause (i) and (ii), are part of the Company's
good faith business plan for such Asset Acquisition. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of
7
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (i) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date (taking into account any Interest Rate Protection Agreement applicable to
such Indebtedness if such Interest Rate Protection Agreement has a remaining
term in excess of 12 months); and (ii) if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Reference
Period. If such Person or any of its Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the above clause shall give effect to
the incurrence of such guaranteed Indebtedness as if such Person or such
Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum of, without duplication, the amounts for such period of (i)
Consolidated Interest Expense and (ii) the product of (a) the aggregate amount
of dividends and other distributions paid or accrued during such period in
respect of Preferred Stock and Redeemable Capital Stock (other than dividends
and distributions on Preferred Stock and Redeemable Capital Stock that are
non-cash through the Final Maturity Date) of such Person and its Subsidiaries on
a consolidated basis times (b) a fraction, the numerator which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory tax rate of such Person, expressed as a decimal; provided,
however, that the denominator in clause (b) shall be one if such dividend or
other distribution is fully tax deductible.
"Consolidated Income Tax Expense" means, with respect to any Person for
any period, the provision for federal, state, local and foreign income taxes of
such Person and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its 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, (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 accrued interest
and (ii) the interest
8
component of Capitalized Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
period, the consolidated net income (or loss) of such Person and its
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses or any unusual or
nonrecurring noncash charge which is not, under GAAP, an extraordinary item,
(ii) the portion of net income (but not losses) of such Person and its
Subsidiaries allocable to minority interests in unconsolidated Persons to the
extent that cash dividends or distributions have not actually been received by
such Person or one of its Subsidiaries, (iii) net income (or loss) of any Person
combined with such Person or one of its Subsidiaries on a "pooling of interests"
basis attributable to any period prior to the date of combination, (iv) any gain
or loss realized upon the termination of any employee pension benefit plan, on
an after-tax basis, (v) gains or losses in respect of any Asset Sales by such
Person or one of its Subsidiaries, (vi) the net income of any Subsidiary of such
Person to the extent that the declaration of dividends or similar distributions
by that Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its shareholders and (vii) any closing costs
associated with the Acquisition Transaction and the financing thereof,
restructuring costs and costs related to the closing of facilities.
"Consolidated Net Worth" means, with respect to any Person at any date,
the consolidated shareholders' equity of such Person less the amount of such
shareholders' equity attributable to Redeemable Capital Stock of such Person and
its Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Subsidiaries reducing Consolidated Net Income of such
Person and its Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which required an accrual of or a
reserve for cash charges for any future period).
"consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its Subsidiaries if and to the extent
the accounts of such Person and each of its Subsidiaries would normally be
9
consolidated with those of such Person, all in accordance with GAAP. The term
"consolidated" has a meaning correlative to the foregoing.
"control" means, with respect to any specified person, the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is located in New York City.
"covenant defeasance" shall have the meaning set forth in Section 8.02.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Bank Credit Agreement and (ii) any other Senior Indebtedness which (a)
at the time of the determination exceeds $5,000,000 in aggregate principal
amount and (b) is specifically designated in the instrument evidencing such
Senior Indebtedness as "Designated Senior Indebtedness" by the Company.
"Escrow Agreement" means the Escrow Agreement, dated as of November 18,
0000 xxxxxxx xxx Xxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York as escrow
agent.
"Event of Default" has the meaning set forth under Section 6.01.
"Excess Proceeds" shall have the meaning set forth in Section 4.13.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
10
"Exchange Notes" refers to any Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms or legends with respect to transfer restrictions under the
Securities Act and shall be registered under the Securities Act, and (ii) all
provisions relating to an increase in the stated rate of interest thereon shall
be eliminated) that are issued and exchanged for the Initial Notes in accordance
with the Exchange Offer, as provided for in the Registration Rights Agreement.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any assets, the price, as
determined by the Company, acting in good faith which could be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of which is under pressure or compulsion to complete the
transaction; provided, however, that, with respect to any transaction which
involves an asset or assets in excess of $250,000, such determination shall be
evidenced by Board Resolutions delivered to the Trustee.
"Final Maturity Date" means November 15, 2004.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States of America, which are applicable on the date of
this Indenture and are consistently applied.
"Global Note" has the meaning set forth in Section 2.01.
"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.
11
"Holder" or "Noteholder" means the person in whose name a Note is
registered on the Registrar's books.
"incur" has the meaning set forth in Section 4.08.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business and
which are not overdue by more than 90 days, and excluding all obligations,
contingent or otherwise, of such Person in connection with any undrawn letters
of credit, banker's acceptance or other similar credit transaction, (b) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade accounts payable arising in the ordinary
course of business, (d) all Capitalized Lease Obligations of such Person, (e)
all Indebtedness referred to in the preceding clauses of other Persons and all
dividends of other Persons, the payment of which is secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness (the amount of
such obligation being deemed to be the lesser of the Fair Market Value of such
property or asset or the amount of the obligation so secured), (f) all
guarantees of Indebtedness referred to in this definition by such Person, (g)
all Redeemable Capital Stock of such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued dividends,
(h) all obligations under or in respect of Currency Agreements and Interest Rate
Protection Obligations of such Person, (i) any Preferred Stock of any Subsidiary
of such Person valued at the sum of (without duplication) (A) the liquidation
preference thereof, (B) any mandatory redemption payment obligations in respect
thereof and (C) accrued cash dividends thereon, and (j) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) through (i) above. For
purposes hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Redeemable Capital Stock, such fair
12
market value shall be determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time.
"Independent Financial Advisor" means a firm (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, is otherwise independent and qualified to perform the
task for which it is to be engaged.
"Initial Notes" refers to Notes initially issued under this Indenture
and distributed in transactions exempt from registration under the Securities
Act prior to the exchange of such Notes for Exchange Notes.
"interest" means, with respect to any Note, the amount of all interest
accruing on such Note, including all interest accruing subsequent to the
occurrence of any events specified in Sections 6.01(f) or (g) or which would
have accrued but for any such event, whether or not such claims are allowable
under applicable law.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes, as set forth therein.
"Interest Rate Protection Agreement" means, with respect to any Person,
any arrangement wit any other Person whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to an Interest Rate Protection Agreement.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such Person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any other Person. In addition, the Fair
Market Value of
13
the assets of any Subsidiary of the Company at the time that such Subsidiary is
designated as an Unrestricted Subsidiary shall be deemed to be an Investment
made by the Company in such Unrestricted Subsidiary at such time. "Investments"
shall exclude extensions of trade credit by the Company and its Subsidiaries in
the ordinary course of business in accordance with normal trade practices of the
Company or such Subsidiary, as the case may be.
"Issue Date" means the date on which the Notes are originally issued.
"legal defeasance" shall have the meaning set forth in Section 8.02.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A Person shall be deemed to own subject to a Lien any property which such
Person has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement.
"Maturity Date" means, with respect to any security, the date on which
any principal of such security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when rece ved in the form of cash or Cash
Equivalents (except to the extent that such obligations are financed by or sold
with recourse to the Company or any Subsidiary of the Company) net of (i)
brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers) related
to such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) amounts required to be paid to any Person (other than the
Company or any Subsidiary of the Company) owning a beneficial interest in the
assets subject to such Asset Sale, (iv) all payments made on any Indebtedness
which is secured by any assets subject to such Asset Sale, in accordance with
the terms of any Lien upon such assets, or which must by its terms, or in order
to obtain a necessary consent to such Asset Sale, or by applicable law, be
repaid out of the proceeds from such Asset Sale and (v) appropriate amounts to
be provided by the Company or any Subsidiary of the Company, as the case may be,
as a reserve required in accordance with GAAP against any liabilities associated
with such Asset Sale and retained by the Company or any Subsidiary of the
Company, as the case may be,
14
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee.
"Non-payment Default" means any event (other than a Payment Default)
the occurrence of which entitles one or more persons to act to accelerate the
maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a person other than a U.S. Person.
"Notes" has the meaning set forth in the preamble hereof.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, any Executive Vice President, any Vice President, the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary, an
Assistant Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers of
the Company, only one of whom can be a Secretary or an Assistant Secretary and
delivered to the Trustee.
"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.
"Pari Passu Indebtedness" means Indebtedness of the Company which ranks
pari passu in right of payment with the Notes.
"Paying Agent" has the meaning set forth in Section 2.03, except that,
for the purposes of Section 4.12 and Section 4.13 and Articles Three and Eight,
the Paying Agent shall not be the Company or a Subsidiary of the Company or any
of their respective Affiliates.
"Payment Bloackage Notice" has the meaning set forth in Section 10.03.
"Payment Bloackage Period" has the meaning set forth in Section 10.03.
"Payment Default" means any default in the payment of principal,
premium, if any, or interest on any Senior Indebtedness.
"Permitted Holder" means Blackstone Capital Partners II Merchant
Banking Fund L.P. or Xxxxxx Group International, Inc., or any Affiliate of
either.
15
"Permitted Investments" means any of the following:
(i) Investments in any Wholly-Owned Subsidiary of the Company
(including any Person that pursuant to such Investment becomes a Wholly-Owned
Subsidiary of the Company) and any Person that is merged or consolidated with or
into, or transfers or conveys all or substantially all of its assets to, the
Company or any Wholly-Owned Subsidiary of the Company at the time such
Investment is made and thereafter remains a Subsidiary;
(ii) Investments in Cash Equivalents;
(iii) loans or advances to officers, employees or consultants of the
Company and its Subsidiaries in the ordinary course of business for bona fide
business purposes of the Company and its Subsidiaries (including travel and
moving expenses) not in excess of $1,000,000 in the aggregate at any one time
outstanding;
(iv) Investments in evidences of Indebtedness, securities or other
property received from another Person by the Company or any of its Subsidiaries
in connection with any bankruptcy proceeding or by reason of a composition or
readjustment of debt or a reorganization of such Person or as a result of
foreclosure, perfection or enforcement of any Lien in exchange for evidences of
Indebtedness, securities or other property of such Person held by the Company or
any of its Subsidiaries, or for other liabilities or obligations of such other
Person to the Company or any of its Subsidiaries that were created, in
accordance with the terms of this Indenture;
(v) Investments of funds received by the Company or its Subsidiaries in
the ordinary course of business, which funds are required to be held in trust
for the benefit of others by the Company or such Subsidiary, as the case may be,
and which funds do not constitute assets or liabilities of the Company or such
Subsidiary;
(vi) Investments in Related Businesses; provided that the sum of (i)
the aggregate Fair Market Value of all such Investments and (ii) the aggregate
Fair Market Value of all Preferred Stock permitted to be issued pursuant to
clause (z) of Section 4.10 shall not exceed $5,000,000 at any time outstanding;
(vii) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Subsidiary or in satisfaction of judgments;
16
(viii) Investments in Persons to the extent such Investment represents
the non-cash consideration otherwise permitted to be received by the Company or
its Subsidiaries in connection with an Asset Sale or in connection with a
transaction excepted from the definition of Asset Sale pursuant to the last
sentence of such definition; and
(ix) Investments existing on the Issue Date.
"Permitted Junior Notes" shall have the meaning set forth in Section
10.02
"Permitted Liens" means the following types of Liens:
(a) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or any of its Subsidiaries shall have
set aside on its books such reserves as may be required pursuant to GAAP;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in respect thereof;
(c) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, governmental contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);
(d) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired;
(e) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company or any
of its Subsidiaries;
17
(f) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;
(g) purchase money Liens to finance the acquisition of property or
assets of the Company or any Subsidiary of the Company acquired in the ordinary
course of business; provided, however, that (i) the related purchase money
Indebtedness shall not be secured by any property or assets of the Company or
any Subsidiary of the Company other than the property and assets so acquired and
(ii) the Lien securing such Indebtedness either (x) exists at the time of such
acquisition or (y) shall be created within 90 days of such acquisition;
(h) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; and
(i) Liens with respect to Acquired Indebtedness incurred in accordance
with Section 4.08.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Physical Notes" has the meaning set forth in Section 2.01.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 hereof in exchange for a
mutilated Note or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any Capital Stock
of such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"principal" means, with respect to any debt security, the principal of
the security plus, when appropriate, the premium, if any, on the security and
any interest on overdue principal.
"Private Placement Legend" has the meaning set forth in Section 2.10.
"QIB" has the meaning set forth in Section 2.09.
18
"Redeemable Capital Stock" means any shares of any class or series of
Capital Stock, that, either by the terms thereof, by the terms of any security
into which it is convertible or exchangeable or by contract or otherwise, is or
upon the happening of an event or passage of time would be, required to be
redeemed prior to the Stated Maturity with respect to the principal of any Note
or is redeemable at the option of the holder thereof at any time prior to any
such Stated Maturity, or is convertible into or exchangeable for debt securities
at any time prior to any such Stated Maturity.
"Redemption Date" means, with respect to any Note to be redeemed, each
such date fixed by the Company for redemption pursuant to this Indenture and the
Notes.
"Redemption Price" means, with respect to any Note to be redeemed, the
price fixed for such redemption pursuant to the terms of this Indenture and the
Notes.
"Regulation S" means Regulation S under the Securities Act or any
uccessor thereto.
"Registrar" has the meaning set forth in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of November 15, 1996 by and between the Company and Xxxxx Xxxxxx Inc.
"Related Business" means any business, the majority of whose revenues
are derived from providing funeral or cemetery products or services or any
business or activity that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto.
"Replacement Assets" has the meaning set forth in Section 4.13.
"Restricted Payment" has the meaning set forth in Section 4.09.
"Revolving Credit Facility" means the $25 million senior secured
revolving credit facility under the Bank Credit Agreement.
"RH Holdings" means Rose Hills Holdings Corp., a Delaware corporation
and the parent of the Company.
"Rule 144A" means Rule 144A under the Securities Act or any successor
thereto.
19
"Sale-Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person after the acquisition
thereof or the completion of construction or commencement of operation thereof
to such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last payment of
rent or any other amount due under such arrangement prior to the first date on
which such arrangement may be terminated by the lessee without payment of a
penalty.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, or if at any time after the execution of this Indenture such
Commission is not existing and performing the applicable duties now assigned to
it, then the body or bodies performing such duties at such time.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"S&P means Standard & Poor's Ratings Group and its successors.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall include
all obligations of the Company now or hereafter existing under the Bank Credit
Agreement, including without limitation principal of, premium, and interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
post-petition interest is allowed as a claim in such proceeding) on Indebtedness
outstanding under the Bank Credit Agreement, reimbursement obligations of the
Company with respect to any letters of credit outstanding under the Bank Credit
Agreement and any obligation for fees, expenses and indemnities. Notwithstanding
the foregoing, "Senior Indebtedness" shall not include (a) Indebtedness
evidenced by the Notes, (b) Indebtedness that is expressly subordinate or junior
in right of payment to any Indebtedness of the Company, (c) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Law, is without recourse to the Company, (d) Indebtedness which is
represented by Redeemable Capital Stock, (e) Indebtedness for goods, materials
or services purchased in the ordinary course of business or Indebtedness
consisting of trade payables or other
20
current liabilities (other than any current liabilities owing under the Bank
Credit Facilities or the current portion of any long-term Indebtedness which
would constitute Senior Indebtedness but for the operation of this clause (e)),
(f) Indebtedness of or amounts owed by the Company for compensation to employees
or for services rendered to the Company, (g) any liability for federal, state,
local or other taxes owed or owing by the Company, (h) Indebtedness of the
Company to a Subsidiary of the Company or any other Affiliate of the Company or
any of such Affiliate's Subsidiaries, (i) that portion of any Indebtedness which
is incurred by the Company in violation of this Indenture and (j) amounts owing
under leases (other than Capitalized Lease Obligations).
"Senior Representative" means the Bank Agent or any other
representatives designated in writing to the Trustee of the holders of any class
or issue of Designated Senior Indebtedness.
"Significant Subsidiary" shall mean a Subsidiary which is a
"Significant Subsidiary" as defined in Rule 1.02(w) of Regulation S-X under the
Securities Act.
"Special Redemption Date" means the date, if any, on which the Notes
are redeemed pursuant to Clause 3(b) of the Notes.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Subsidiary which is expressly subordinated in right of payment to the Notes.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Person performing
similar functions). For purposes of this definition, any directors' qualifying
shares or investments by foreign nationals
21
mandated by applicable law shall be disregarded in determining the ownership of
a Subsidiary. Notwithstanding the foregoing, an Unrestricted Subsidiary shall
not be deemed a Subsidiary of the Company under this Indenture, other than for
purposes of the definition of an Unrestricted Subsidiary, unless the Company
shall have designated an Unrestricted Subsidiary as a "Subsidiary" by written
notice to the Trustee under the Indenture, accompanied by an Officers'
Certificate as to compliance with this Indenture; provided, however, that the
Company shall not be permitted to designate any Unrestricted Subsidiary as a
Subsidiary unless, after giving pro forma effect to such designation, (i) the
Company would be permitted to incur $1.00 of additional Indebtedness (other than
Indebtedness permitted under Clauses (a)-(k) of the second paragraph of Section
4.08) under the first paragraph of Section 4.08 hereof (assuming a market rate
of interest with respect to such Indebtedness) and (ii) all Indebtedness and
Liens of such Unrestricted Subsidiary would be permitted to be incurred by a
Subsidiary of the Company under this Indenture. A designation of an Unrestricted
Subsidiary as a Subsidiary may not thereafter be rescinded and shall contain the
Board Resolution as to the Fair Market Value of the assets of such Unrestricted
Subsidiary for purposes of Clause (C)(2) of Section 4.09.
"Surviving Entity" shall have the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the Issue Date.
"Trust Officer" means any officer or assistant officer in the Corporate
Trust Administration department or similar department performing corporate trust
work of the Trustee or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces such party in accordance with the provisions of this
Indenture, and thereafter means such successor.
"United States" has the meaning given to it in Regulation S.
"Unrestricted Subsidiary" means a Subsidiary of the Company (i) none of
whose properties or assets were owned by the Company or any of its Subsidiaries
prior to the Issue Date, other than any such assets as are transferred to such
Unrestricted Subsidiary in accordance with Section 4.09 hereof, (ii) whose
properties and assets, to the extent that they secure Indebtedness, secure only
Non-
22
Recourse Indebtedness and (iii) which has no Indebtedness other than Non-
Recourse Indebtedness. As used above, "Non-Recourse Indebtedness" means
Indebtedness as to which (i) neither the Company nor any of its Subsidiaries
(other than the relevant Unrestricted Subsidiary or another Unrestricted
Subsidiary) (1) provides credit support (including any undertaking, agreement or
instrument which would constitute Indebtedness), (2) guarantees or is otherwise
directly or indirectly liable or (3) constitutes the lender (in each case, other
than pursuant to and in compliance with Section 4.09 hereof) and (ii) no default
with respect to such Indebtedness (including any rights which the holders
thereof may have to take enforcement action against the relevant Unrestricted
Subsidiary or its assets) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or its Subsidiaries (other than
Unrestricted Subsidiaries) to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity. Subject to the foregoing, a Subsidiary may be designated as an
Unrestricted Subsidiary by written notice to the Trustee under this Indenture
accompanied by an Officers' Certificate as to compliance with this Indenture.
"U.S. Government Obligations" shall have the meaning set forth in
Section 8.02.
"U.S. Person" has the meaning given to it in Regulation S.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, Capital
Stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means any Subsidiary of the Company of which
100% of the outstanding Capital Stock is owned by one or more Wholly-Owned
Subsidiaries of the Company or by the Company and one or more Wholly-Owned
Subsidiaries of the Company. For purposes of this definition, any directors'
qualifying shares or investments by foreign nationals mandated by applicable law
shall be disregarded in determining the ownership of a Subsidiary.
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:
23
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Noteholder or Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securites means the Company or any other
obligor on the Notes.
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.
SECTION 1.03. Rules of Construction
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1. a term has the meaning assigned to it;
2. words in the singular include the plural, and words in the plural
include the singular;
3. "or" is not exclusive;
4. provisions apply to successive events and transactions;
5. all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
6. the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
7. all references to $ or dollars shall refer to the lawful currency of
the United States of America.
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ARTICLE 2
THE NOTES
SECTION 2.01. Forms and Dating.
The Notes and the Trustee's certificate of authentication thereon shall
be in substantially the form of Exhibit A and Exhibit B hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with any applicable law or with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Notes, as evidenced by their execution thereof. The
Notes shall be issuable only in registered form without coupons and only in
denominations of $1,000 and integral multiples thereof.
The definitive Notes shall be printed, typewritten, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes. Each Note shall be dated the date of
its authentication.
Initial Notes offered and sold in reliance on Rule 144A shall, except
as described in the following paragraph, and, unless the Global Note
representing the Initial Notes has theretofore been exchanged for Physical Notes
and except as described in the following paragraph, the Exchange Notes shall, be
issued initially in the form of one or more permanent global Notes substantially
in the form set forth in Exhibit A hereto, each such Note containing the legend
relating to global securities set forth in Section 2.09 and, in the case of the
Initial Notes, the Private Placement Legend set forth in Section 2.09 (each a
"Global Note") deposited with, or on behalf of, the Depositary or with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Global Note may from time to time be increased or decreased by
adjustments made on the records, in the form of Schedule A to the Global Note,
of the Depositary or its nominee, or of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold other than as described in the preceding
paragraph, and any Physical Notes issued in exchange for all or a portion of an
Exchange Note that is a Global Note, shall be issued in the form of permanent
25
certificated Notes in registered form in substantially the form set forth in
Exhibit B hereto (the "Physical Notes"). Notes issued pursuant to Section 2.09
in exchange for interests in the Global Note shall be in the form of Physical
Notes.
The terms and provisions contained in the form of the Notes, annexed
hereto as Exhibits A and B shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers shall execute the Notes on behalf of the Company by either
manual or facsimile signature. The Company's seal shall be impressed, affixed,
imprinted or reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note or at any time thereafter, the
Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. Such signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue in
an aggregate principal amount not to exceed $80,000,000 and (ii) Exchange Notes
for issue only in the Exchange offer, pursuant to the Registration Rights
Agreement, for a like principal amount of Initial Notes exchanged in such
Exchange Offer, in each case upon receipt of an Officers' Certificate signed by
two Officers of the Company directing the Trustee to authenticate such Notes and
certifying that all conditions precedent to the issuance of the relevant Notes
contained herein have been complied with. The aggregate principal amount of
Notes outstanding at any time may not exceed $80,000,000, except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. Such authenticating agent shall have the same
rights as the Trustee in any dealings hereunder with the Company or with any of
the Company's Affiliates.
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SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be located
in the Borough of Manhattan, The City of New York, State of New York) where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan, The City of New York, State of New York) where Notes may be presented
for payment of principal, premium, if any, and interest (the "Paying Agent") and
an office or agency where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-Registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent. Except as otherwise
expressly provided in this Indenture, the Company or any Affiliate thereof may
act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Registrar or Paying Agent. The Company shall
notify the Trustee of the name and address of any such Registrar or Paying
Agent. If the Company fails to maintain a Registrar, Paying Agent or agent for
service of notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.08.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
SECTION 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by the Paying Agent for the payment of principal of, or
interest on, the Notes (whether such money has been distributed to it by the
Company or any other obligor on the Notes), and the Company (or any other
obligor on the Notes) and the Paying Agent shall notify the Trustee of any
default by the Company (or any other obligor on the Notes) in making any such
payment. If the Company or an Affiliate of the Company acts as Paying Agent, it
shall segregate the money and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to distribute all money held by it
to the Trustee and account for any funds disbursed and the Trustee may at any
time during the continuance of any Payment Default with respect to the Notes,
upon written request to a Paying Agent, require such Paying Agent to pay all
money held by it
27
to the Trustee and to account for any funds distributed. Upon doing so, the
Paying Agent (other than an obligor on the Notes) shall have no further
liability for the money so paid over to the Trustee.
SECTION 2.05. Noteholder 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 and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least ten
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, including
the aggregate principal amount of Notes held by each such Holder, which list may
be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Section 2.11, when Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Notes or to
exchange such Notes for an equal principal amount of Notes of other authorized
denominations, 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 Notes 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 and shall be
accompanied by such other documents or instruments, if any, as are required by
Sections 2.09 through 2.11. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made for any
transfer, exchange or redemption, 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 similar governmental
charge payable upon exchange pursuant to Sections 2.02, 2.07, 2.13, 3.06, 4.12,
4.13 or 9.05 or the Exchange Offer without transfer to another person). The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Note (i) during a period beginning at the opening of business 15
days before the mailing of a notice of redemption of Notes 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 3, except the unredeemed portion of any
Note being redeemed in part.
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Any Holder of the Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Note may be effected
only through a book-entry system maintained by the Holder of such Global Note
(or its agent), and that ownership of a beneficial interest in the Note shall be
required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note of
like tenor and amount if the Trustee's requirements are met. If required by the
Trustee or the Company, 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 or any Paying Agent or Registrar from any loss
which any of them may suffer if a Note is replaced. The Company may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Note, including
reasonable fees and expenses of counsel. Every replacement Note is an additional
obligation of the Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. A Note
does not cease to be outstanding because the Company or any of its Affiliates
holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or a Maturity Date the Paying Agent (other than
the Company or an Affiliate of the Company) holds cash or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date, and is not prohibited from paying such cash or U.S.
Government Obligations to the Holders of such Notes pursuant to the terms of
this Indenture, then on and after that date such Notes cease to be outstanding
and interest on them shall cease to accrue.
29
SECTION 2.09. Book-Entry Provisions for Global Note. (a) Each Global
Note initially shall (i) be registered in the name of the Depositary for such
Global Note or the nominee of such Depositary, (ii) be deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for such Depositary,
and (iii) bear the legends as set forth in Section 2.10 except a Global Note
representing the Exchange Notes shall not bear the Private Placement Legend set
forth in Section 2.10. Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary, or the Trustee as its custodian, or
under the Global Note, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in the Global Note may
be transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.11. In addition, Physical Notes shall be issued to
all beneficial owners in exchange for their beneficial interests in the Global
Note if (i) the Company notifies the Trustee in writing that the Depositary is
at any time unwilling or unable to continue as a depository for the Global Note
and a successor depository is not appointed by the Company within 90 days or
(ii) the Company, at its option, notifies the Trustee in writing that it elects
to cause the issuance of Notes in definitive form under this Indenture.
(c) In connection with any transfer of a portion of the beneficial
interest in the Global Note pursuant to Section 2.09(b) to beneficial owners who
are required to hold Physical Notes, the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of the Global Note
in an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Physical Notes of like tenor and
amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to Section 2.09(b), the Global Note shall be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in
30
exchange for its beneficial interest in the Global Note an equal aggregate
principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in the
Global Note constituting an Initial Note pursuant to subsection (c) or
subsection (d) of this Section shall bear the applicable legend regarding
transfer restrictions set forth in Section 2.10.
(f) The Holder of the Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.10. Restrictive Legends.
Upon the registration of transfer, exchange or replacement of Notes not
bearing the legend substantially in the form set forth below (the "Private
Placement Legend"), the Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes bearing a legend substantially in the form of the Private
Placement Legend, the Registrar shall deliver only Notes that bear a legend
substantially in the form of the Private Placement Legend unless (i) the
condition of paragraph (a)(i)(x) of Section 2.11 exists or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (iii) Initial Notes are validly tendered in
the Exchange Offer for Exchange Notes or sold under an effective registration
statement.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEF NED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT
31
WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT UPON FURNISHING TO THE TRUSTEE A LETTER SIGNED BY THE
TRANSFEROR CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER
THE ORIGINAL ISSUANCE HEREOF, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM IN
REGULATION S UNDER THE SECURITIES ACT.
Each Global Note, whether or not an Initial Note, shall also bear a
legend substantially to the following effect on the face thereof:
32
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 2.09 AND 2.11 OF THE INDENTURE.
SECTION 2.11. Special Transfer Provisions. Unless and until (i) an
Initial Note is sold under an effective registration statement, or (ii) an
Initial Note is exchanged for an Exchange Note in connection with the
Exchange Offer, in each case pursuant to the Registration Rights Agreement,
the following provisions shall apply:
(a) Transfers to Non-QIB Accredited Investors. The following provisions
shall apply with respect to the registration of any proposed transfer of an
Initial Note to any Accredited Investor that is not a QIB (excluding
Non-U.S. Persons) in a minimum principal amount of $250,000:
(i) The Registrar shall register the transfer of any Initial
Note, whether or not such Initial Note bears the Private
Placement Legend, if (x) the requested transfer is at least
three years after the Issue Date or (y) the proposed transferee
has delivered to the Registrar a certificate substantially in
the form set forth in Section 2.18(a); and, if the Company so
requests, an opinion of counsel reasonably acceptable to the
Company and the Trustee to the effect that such transfer is in
compliance with the Securities Act; and
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the
Registrar of (x) the certificate and opinion, if any, required
by paragraph (i) above
33
and (y) instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the
Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Note to a QIB
(excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (A) Physical
Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked
the box provided for on the form of Initial Note stating, or has
otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule
144A to a transferee who has advised the Company and the
Registrar in writing, that it is a QIB, that it is purchasing the
Note for its own account or an account with respect to which it
exercises sole investment discretion (the beneficial owner of
which is a QIB) and that it and any such sale to it is being made
in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A or (B) an
interest in the Global Note, the transfer of such interest may be
affected only through the book entry system maintained by the
Depositary.
(ii) If the proposed transferor is an Agent Member, and the
Initial Note to be transferred consists of Physical Notes, which
after transfer are to be evidenced by an interest in the Global
Note, upon receipt by the Registrar of the documents referred to
in clause (i) and instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount at maturity of the Global Note in an amount
equal to the principal amount at maturity of the Physical Notes
to be transferred, and the Trustee shall cancel the Physical Note
so transferred.
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(c) Transfers to Non-U.S. Persons. The following provisions
shall apply with respect to any registration of transfer of an Initial Note to
a Non-U.S. Person:
(i) No transfer shall be made prior to expiration of 40 days
from the Issue Date.
(ii) The Registrar shall register any proposed transfer to any
Non-U.S. Person only upon receipt of a certificate substantially in the form
set forth in Section 2.18(b) from the proposed transferor.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of (x) the
certificate required by paragraph (ii) above and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount at maturity of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred. The Company shall execute, and the Trustee shall authenticate and
deliver, one or more Physical Notes in the principal amount of the Physical Note
or interest in the Global Note being transferred.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain until such time as no Notes remain
Outstanding copies of all letters, notices and other written communications
received pursuant to Section 2.09 or this Section 2.11. The Company shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Registrar.
SECTION 2.12. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any of its 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 Notes that to the actual knowledge
of the Trustee are so owned shall be disregarded.
SECTION 2.13. Temporary Notes.
35
Until definitive Notes are prepared and ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.14. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or an Affiliate of the Company), and no one else, shall promptly
cancel and retain or, at the written request of the Company, may, dispose of
(subject to the record retention requirements of the Exchange Act), or return to
the Company in accordance with its normal practice, all Notes surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that it has paid or delivered
to the Trustee for cancellation. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.14.
SECTION 2.15. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the persons who are Holders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed. The Company shall fix
such special record date and payment date in a manner satisfactory to the
Trustee. At least 15 days before such special record date, the Company shall
mail to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
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SECTION 2.16. Cusip Number.
The Company in issuing the Notes may use a "CUSIP" number (if then
generally in use), and if so, the Trustee may use the CUSIP numbers 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 Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee of any change in the CUSIP
number.
SECTION 2.17. Deposit of Moneys.
On or before 10:00 a.m., New York City Time, on each Interest Payment
Date and Maturity Date, the Company shall deposit with the Trustee or Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or 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 or Special Redemption Date or Maturity Date, as
the case may be. The principal and interest on Global Notes shall be payable to
the Depositary or its nominee, as the case may be, as the sole registered owner
and the sole Holder of the Global Notes represented thereby. Principal and
interest on Physical Notes shall be payable at the office of the Paying Agent.
SECTION 2.18. Form of Certificate to Be Delivered.
(a) The following is the form of certificate to be delivered in
connection with transfers to non-QIB Accredited Investors.
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
In connection with our proposed purchase of 9 1/2% Senior Subordinated
Notes due 2004 (the "Notes") of Rose Hills Acquisition Corp., a Delaware
corporation ("the Company"), we hereby confirm that:
1. We have received a copy of certain portions of the Offering
Memorandum (the "Offering Memorandum"), dated November 14, 1996, relating to the
Notes and such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agree to the matters
stated in pages 2 through 3 of the Offering Memorandum and in the section titled
"Transfer Restrictions" in the Offering Memorandum, including the restrictions
on duplication and circulation of the Offering Memorandum.
37
2. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture relating to
the Notes (as described in the Offering Memorandum) and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the Notes except
in compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold within the United States or to or for the account or benefit of U.S.
persons, except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Notes, we will do so only (A) to the Company
or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes to the Trustee (as defined in the Indenture relating to the
Notes) a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Notes (the form of which letter
can be obtained from the Trustee), (D) outside the United States in accordance
with Regulation S under the Securities Act (if available) upon furnishing the
Trustee a letter signed by the transferor containing certain representations and
agreements relating to transfer of the Notes (the form of which letter can be
obtained from the Trustee), (E) pursuant to an exemption from registration
provided by Rule 144 under the Securities Act (if available) or (F) pursuant to
an effective registration statement under the Securities Act. We further agree
to provide any person purchasing Notes from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein.
4. We understand that, on any proposed resale of Notes, we will be
required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
5. We are an institutional "accredited investor" within the meaning of
Rule 501(a)(1),(2),(3) or (7) under Regulation D of the Securities Act and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of purchasing Notes and we and any accounts
for which we are acting are able to bear the economic risks of and an entire
loss of our or their investment in the Notes.
6. We are acquiring the Notes purchased by us for our own account or
for the account of one or more other accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and for each of which we are acquiring not less than $250,000 total
principal amount.
We acknowledge that you, the Company and the Trustee and others will
rely upon our acknowledgments, representations, and agreements set forth herein,
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. We agree to notify you promptly in
writing if any of our acknowledgments, representations or agreements herein
cease to be accurate and complete.
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We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary or agent.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
--------------------------------------------------
(Name of Purchaser)
By:______________________________________________
Name:
Title:
Address:
(b) The following is the form of certificate to be delivered in
connection with transfers pursuant to Regulation S.
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed sale of $_________ aggregate principal
amount of the 9 1/2% Senior Subordinated Notes due 2004 (the "Notes") of Rose
Hills Acquisition Corp., we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or a person
in the United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(b) the transaction as executed in, on or through the facilities of a designated
offshore securities market and neither we nor any person acting on our behalf
knows the transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
39
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
Authorized Signature
ARTICLE 3
REDEMPTION OF NOTES
SECTION 3.01. Notices to the Trustee.
If the Company is permitted to, and elects to or is mandatorily
obligated to, redeem Notes pursuant to Paragraph 3(a) or 3(b) of the Notes, it
shall notify the Trustee of the Redemption Date and principal amount of Notes to
be redeemed.
The Company shall notify the Trustee by an Officers' Certificate,
stating that such redemption will comply with the provisions hereof and of the
Notes, of any redemption at least 45 days before the Redemption Date or, 60 days
before the Redemption Date in the case of a partial redemption or, in the case
of a redemption pursuant to Paragraph 3(b) of the Notes, such lesser number of
days as the Company and the Trustee may agree.
SECTION 3.02. Selection of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular Notes or
portions thereof to be redeemed shall be selected from the outstanding Notes not
previously called for redemption either (x) pro rata, by lot or by such other
method as the Trustee considers to be fair and appropriate or (y) in such manner
as complies with the requirements of the principal national securities exchange,
if any, on which the Notes being redeemed are listed. The amounts to be redeemed
shall be equal to $1,000 or any integral multiple thereof.
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The Trustee shall promptly notify the Company and the Registrar in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
SECTION 3.03. Notice of Redemption.
Subject to Section 3.07, notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Notes to be redeemed, at the
address of such Holder appearing in the Note register maintained by the
Registrar.
All notices of redemption shall identify the Notes to be redeemed and
shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(iii) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Notes redeemed;
(iv) if any Note is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of
such Note to be redeemed and that on and after the Redemption Date,
upon surrender for cancellation of such original Note to the Paying
Agent, a new Note or Notes in the aggregate principal amount equal to
the unredeemed portion thereof will be issued without charge to the
Holder;
(v) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
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(vi) the CUSIP number, if any, relating to such Notes, but no
representation is made as to the correctness or accuracy of any such
CUSIP numbers; and
(vii) the paragraph of the Notes pursuant to which the Notes
are being redeemed.
Notice of redemption of Notes to be redeemed shall be given by the
Company or, at the Company's written request, by the Trustee in the name and at
the sole expense of the Company.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price plus accrued interest to the Redemption Date, but interest
installments whose maturity is on or prior to such Redemption Date will be
payable on the relevant Interest Payment Dates to the Holders of record at the
close of business on the relevant record dates referred to in the Notes. Failure
to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time, on any Redemption Date,
the Company shall deposit with the Paying Agent an amount of money in same day
funds sufficient to pay the Redemption Price of, and accrued interest on, all
the Notes or portions thereof which are to be redeemed on that date, other than
Notes or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price and accrued and unpaid
interest on the Notes to be redeemed, interest on the Notes to be redeemed will
cease to accrue on and after the applicable Redemption Date, whether or not such
Notes are presented for payment. If any Note called for redemption shall not be
so paid upon surrender thereof for redemption, the principal, premium, if any,
and, to the extent lawful, accrued interest thereon shall, until paid, bear
interest from the Redemption Date at the rate provided in the Notes.
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SECTION 3.06. Notes Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Note which is to be redeemed
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or Notes
of like tenor, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the unredeemed portion
of the principal of the Note so surrendered that is not redeemed.
SECTION 3.07. Special Redemption.
(a) Notice of a Special Redemption shall be mailed at least three
Business Days prior to the Special Redemption Date. Any redemption pursuant to
this Section 3.07 shall be consistent with the provisions of the Escrow
Agreement. In the event that the special redemption price is greater than the
Escrowed Amounts, the Company shall not be under an obligation to pay, or
deposit with the Escrow Agent, the difference.
(b) The Company shall promptly notify the Trustee and the Escrow Agent
by means of an Officers' Certificate of the consummation of the Acquisition
Transaction.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Company will pay, or cause to be paid, the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and
this Indenture. 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
Subsidiary of the Company or any Affiliate thereof) holds on that date money
designated and set aside for and sufficient to pay the installment in a timely
manner and is not prohibited from paying such money to the Holders of the Notes
pursuant to the terms of this Indenture.
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The Company will pay interest on overdue principal at the rate and in
the manner provided in the Notes; it shall pay interest on overdue installments
of interest at the same rate and in the same manner, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the office of the Trustee
located at 000 Xxxx 00xx Xxxxxx, in the Borough of Xxxxxxxxx, Xxxx xx Xxx Xxxx
00000-0000, as such office of the Company in accordance with this Section 4.02.
SECTION 4.03. Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to and will cause each of its Subsidiaries to, preserve and
keep in full force and effect the corporate or partnership existence and rights
(charter and statutory), licenses and/or franchises of the Company and each of
its Subsidiaries; provided, however, that the Company or any of its Subsidiaries
shall not be required to preserve any such rights, licenses or franchises, and
the Company shall not be required to maintain the existence of a Subsidiary, if
the Board of Directors of the Company shall reasonably determine that (x) the
preservation or maintenance thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and (y) the loss
thereof is not
44
materially adverse to either the Company and its Subsidiaries taken as a whole
or to the ability of the Company to otherwise satisfy its obligations hereunder.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (b) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon the property of the Company or
any Subsidiary of the Company; 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 the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
provision has been made or where the failure to effect such payment or discharge
is not adverse in any material respect to the Company and its Subsidiaries taken
as a whole.
SECTION 4.05. Maintenance of Properties; Books and Records; Compliance
with Law.
(a) The Company shall, and shall cause each of its Subsidiaries to,
cause all properties and assets to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment, and shall cause to be made all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto, as
shall be reasonably necessary for the proper conduct of its business; provided,
however, that nothing in this Section 4.05(a) shall prevent the Company or any
of its Subsidiaries from discontinuing the operation and maintenance of any of
its properties or assets if such discontinuance is, in the judgment of the Board
of Directors of the Company or such Subsidiary, desirable in the conduct of its
business and if such discontinuance is not materially adverse to the Company and
its Subsidiaries taken as a whole.
(b) The Company shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account, in which full and correct entries shall
be made of all business and financial transactions of the Company and each
Subsidiary of the Company and reflect on its financial statements adequate
accruals and appropriations to reserves, all in accordance with GAAP
consistently applied to the Company and its Subsidiaries taken as a whole.
45
(c) The Company shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, earnings, properties, assets or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole.
SECTION 4.06. Compliance Certificate.
(a) The Company will deliver to the Trustee within 105 days after the
end of the Company's fiscal year an Officers' Certificate stating whether or not
the signers know of any Default or Event of Default under this Indenture by the
Company. If they do know of such a Default or Event of Default, the certificate
shall describe any such Default or Event of Default and its status. The Company
shall also deliver a certificate to the Trustee at least annually from its
principal executive, financial or accounting officer as to his or her knowledge
of the Company's compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice provided herein or therein.
(b) The Company will deliver to the Trustee as soon as possible, and
in any event within 10 days after the Company becomes aware of the occurrence of
any Default, Event of Default or an event of default by the Company under any
Senior Indebtedness, an Officers' Certificate specifying such Default, Event of
Default or such event of default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.07. SEC Reports.
The Company shall file with the SEC or, if not permitted, deliver to
the Trustee the annual reports, quarterly reports and the information, documents
and other reports required to be filed with the SEC pursuant to Sections 13 and
15(d) of the Exchange Act, whether or not the Company has a class of securities
registered under the Exchange Act. In the event that The Xxxxxx Group Inc. fully
and unconditionally guarantees the obligations of the Company under the Notes,
the requirements hereunder may be satisfied through the filing and provision of
such information, documents and reports which would otherwise be required
pursuant to said sections in respect of The Xxxxxx Group Inc. Such requirements
may also be satisfied prior to the 180th day after the Closing Date, with the
filing with the SEC of the Exchange Offer Registration Statement or the Shelf
Registration Statement. In accordance with the provisions of TIA Section
314(a), the Company shall file with the Trustee and provide to each Holder,
within 15 days after it files them with the SEC (or if such filing is not
permitted under the Exchange Act, 15 days after the Company would have been
required to make such
46
filing), copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company (or The Xxxxxx Group Inc.,
if applicable) is required to file with the SEC pursuant to Section 13 or 15 of
the Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a). In addition, following the registration of the common stock of
the Company pursuant to Section 12(b) or 12(g) of the Exchange Act, the Company
shall cause its annual reports to stockholders and any quarterly or other
financial reports furnished by it to stockholders generally to be filed with the
Trustee and mailed no later than the date such materials are mailed or made
available to the Company's stockholders, to the Holders at their addresses as
set forth in the register of securities maintained by the Registrar.
SECTION 4.08. Limitation on Indebtedness.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or in any manner
become directly or indirectly liable, contingently or otherwise, with respect to
(in each case, "incur") any Indebtedness (including, without limitation, any
Acquired Indebtedness); provided, however, that the Company and any of its
Subsidiaries will be permitted to incur Indebtedness (including, without
limitation, Acquired Indebtedness) if at the time of such incurrence, and after
giving pro forma effect thereto, the Consolidated Fixed Charge Coverage Ratio of
the Company is at least equal to 2.00:1.
Notwithstanding the foregoing, the Company and its Subsidiaries may,
to the extent specifically set forth below, incur each and all of the following:
(a) Indebtedness of the Company evidenced by the Notes;
(b) Indebtedness of the Company and its Subsidiaries outstanding
on the Issue Date;
(c) Indebtedness of the Company and its Subsidiaries (i) under the
Bank Credit Agreement (including with respect to letters of credit issued
thereunder); (ii) under any other revolving credit facility or (iii) under any
other credit facility provided by a bank or other financial institution in an
aggregate principal amount for clauses (i) through (iii) at any one time
outstanding not to exceed $125,000,000;
(d) (i) Interest Rate Protection Obligations of the Company covering
Indebtedness of the Company or a Subsidiary of the Company and (ii) Interest
Rate Protection Obligations of any Subsidiary of the Company covering
47
Indebtedness of the Company or such Subsidiary; provided, however, that, in the
case of either clause (i) or (ii), (x) any Indebtedness to which any such
Interest Rate Protection Obligations relate bears interest at fluctuating
interest rates and is otherwise permitted to be incurred under the provisions of
this Section 4.08 and (y) the notional principal amount of any such Interest
Rate Protection Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations relate;
(e) Indebtedness of a Wholly-Owned Subsidiary owed to and held by the
Company or another Wholly-Owned Subsidiary, in each case which is not
subordinated in right of payment to any Indebtedness of such Subsidiary (other
than Indebtedness under its guaranty of the Bank Credit Facilities), except that
(i) any transfer of such Indebtedness by the Company or a Wholly-Owned
Subsidiary (other than to the Company or to a Wholly-Owned Subsidiary) and (ii)
the sale, transfer or other disposition by the Company or any Subsidiary of the
Company of Capital Stock of a Wholly-Owned Subsidiary which is owed Indebtedness
of another Wholly-Owned Subsidiary such that it ceases to be a Wholly-Owned
Subsidiary of the Company shall, in each case, be an incurrence of Indebtedness
by such Subsidiary subject to the other provisions of this Section 4.08;
(f) Indebtedness of the Company owed to and held by a Wholly-Owned
Subsidiary of the Company which is unsecured and subordinated in right of
payment to the payment and performance of the Company's obligations under the
Bank Credit Facilities, this Indenture and the Notes except that (i) any
transfer of such Indebtedness by a Wholly-Owned Subsidiary of the Company (other
than to another Wholly-Owned Subsidiary of the Company) and (ii) the sale,
transfer or other disposition by the Company or any Subsidiary of the Company of
Capital Stock of a Wholly-Owned Subsidiary which holds Indebtedness of the
Company such that it ceases to be a Wholly-Owned Subsidiary shall, in each case,
be an incurrence of Indebtedness by the Company, subject to the other provisions
of this Section 4.08;
(g) Indebtedness under Currency Agreements; provided that in the case
of Currency Agreements which relate to Indebtedness, such Currency Agreements do
not increase the Indebtedness of the Company and its Subsidiaries outstanding
other than as a result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;
(h) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business; provided, however, that such Indebtedness is
extinguished within two Business Days of incurrence;
48
(i) Indebtedness of the Company or any of its Subsidiaries represented
by letters of credit for the account of the Company or such Subsidiary, as the
case may be, in order to provide security for workers' compensation claims,
payment obligations in connection with self-insurance or similar requirements in
the ordinary course of business;
(j) Indebtedness of the Company or any Subsidiary of the Company in
addition to that described in clauses (a) through (i) above, in an aggregate
principal amount outstanding at any time not exceeding $5,000,000; provided,
that if, at the time of incurrence of Indebtedness, the ratio of the aggregate
principal amount of Indebtedness on a pro forma basis after giving effect to the
Indebtedness then being incurred to Consolidated Cash Flow for the four full
fiscal quarters immediately preceding the date of such incurrence is less than
or equal to 6.00:1, then such amount shall be an aggregate principal amount not
exceeding $10,000,000; and
(k) (i) Indebtedness of the Company (including any Indebtedness
incurred in connection with a Sale-Leaseback Transaction permitted pursuant to
Section 4.17) the proceeds of which are used solely to refinance (whether by
amendment, renewal, extension or refunding) Indebtedness of the Company or any
of its Subsidiaries and (ii) Indebtedness of any Subsidiary of the Company the
proceeds of which are used solely to refinance (whether by amendment, renewal,
extension or refunding) Indebtedness of such Subsidiary, in each case other than
the Indebtedness refinanced, redeemed or retired on the Issue Date; provided,
however, that (x) the principal amount of Indebtedness incurred pursuant to this
clause (k) (or, if such Indebtedness provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, the original issue price of such
Indebtedness) shall not exceed the sum of the principal amount of Indebtedness
so refinanced, plus the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of such Indebtedness or the amount
of any premium reasonably determined by the Board of Directors of the Company as
necessary to accomplish such refinancing by means of a tender offer or privately
negotiated purchase, plus the amount of expenses in connection therewith, (y) in
the case of Indebtedness incurred by the Company pursuant to this clause (k) to
refinance Subordinated Indebtedness, such Indebtedness (A) does not have a
Stated Maturity prior to the Maturity of the Subordinated Indebtedness being
refinanced, (B) has an Average Life to Stated Maturity equal to or greater than
the remaining Average Life to Stated Maturity of the Subordinated Indebtedness
being refinanced and (C) is subordinated to the Notes in the same manner and to
the same extent that the Subordinated Indebtedness being refinanced is
subordinated to the Notes and (z) in the case of Indebtedness incurred by the
Company pursuant to this clause
49
(k) to refinance Pari Passu Indebtedness, such Indebtedness (A) does not have a
Stated Maturity prior to the Stated Maturity of the Pari Passu Indebtedness
being refinanced, (B) has an Average Life to Stated Maturity equal to or greater
than the remaining Average Life to Stated Maturity of the Pari Passu
Indebtedness being refinanced and (C) constitutes Pari Passu Indebtedness or
Subordinated Indebtedness.
The Company shall promptly notify the Trustee, by means of an
Officers' Certificate, of the closing of the Bank Credit Agreement and any
replacement, refunding, restructuring or refinancing of any or all of the Bank
Credit Facilities.
SECTION 4.09. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly:
(a) declare or pay any dividend or make any other distribution
or payment on or in respect of Capital Stock of the Company or
any of its Subsidiaries or any payment made to the direct or
indirect holders (in their capacities as such) of Capital Stock
of the Company or any of its Subsidiaries (other than (x)
dividends or distributions payable solely in Capital Stock of
the Company (other than Redeemable Capital Stock) or in options,
warrants or other rights to purchase Capital Stock of the
Company (other than Redeemable Capital Stock), (y) the
declaration or payment of dividends or other distributions to the
extent declared or paid to the Company or any Subsidiary of the
Company and (z) the declaration or payment of dividends or other
distributions by any Subsidiary of the Company to all holders of
Common Stock of such Subsidiary on a pro rata basis),
(b) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Company or any of its Subsidiaries
(other than any such Capital Stock owned by the Company or a
Wholly-Owned Subsidiary of the Company (in each case other than
in exchange for its Capital Stock (other than Redeemable Capital
Stock)),
(c) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled repayment, scheduled
sinking fund payment or other Stated Maturity, any Subordinated
Indebtedness or Pari Passu Indebtedness other than any such
Indebtedness owned by the Company or a Wholly-Owned Subsidiary of
the Company, or
50
(d) make any Investment (other than any Permitted Investment) in
any Person
(such payments or Investments described in the preceding clauses (a), (b), (c)
and (d) are collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to the proposed Restricted Payment (the amount
of any such Restricted Payment, if other than cash, shall be the Fair Market
Value on the date of such Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant to
such Restricted Payment), (A) no Default or Event of Default shall have occurred
and be continuing, (B) immediately prior to and after giving effect to such
Restricted Payment, the Company would be able to incur $1.00 of additional
Indebtedness pursuant to the first paragraph of Section 4.08 (assuming a market
rate of interest with respect to such additional Indebtedness) and (C) the
aggregate amount of all Restricted Payments declared or made from and after the
Issue Date would not exceed the sum of (1) 50% of the aggregate Consolidated Net
Income of the Company accrued on a cumulative basis during the period beginning
on the first day of the fiscal quarter of the Company following the fiscal
quarter during which the Issue Date occurs and ending on the last day of the
fiscal quarter of the Company immediately preceding the date of such proposed
Restricted Payment, which period shall be treated as a single accounting period
(or, if such aggregate cumulative Consolidated Net Income of the Company for
such period shall be a deficit, minus 100% of such deficit) plus (2) the
aggregate net cash proceeds received by the Company either (x) as capital
contributions to the Company after the Issue Date from any Person (other than a
Subsidiary of the Company) or any dividend or distribution from an Unrestricted
Subsidiary of the Company to the extent not otherwise included in Consolidated
Net Income of the Company or (y) from the issuance or sale of Capital Stock
(excluding Redeemable Capital Stock, but including Capital Stock issued upon the
conversion of convertible Indebtedness or from the exercise of options, warrants
or rights to purchase Capital Stock (other than Redeemable Capital Stock)) of
the Company to any Person (other than to a Subsidiary of the Company) after the
Issue Date plus (3) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after the Issue Date
(excluding any Investment described in clause (v) of the following paragraph),
including the redesignation of an Unrestricted Subsidiary as a Subsidiary in
accordance with the definition thereof,.an amount equal to the lesser of the
return of capital with respect to such Investment and the cost of such
Investment, in either case, less the cost of the disposition of such Investment,
or, in the case of a redesignation of an Unrestricted Subsidiary as a
Subsidiary, an amount equal to the lesser of the amount of the Investment
previously deemed to have been made in connection with the designation of such
Subsidiary as an Unrestricted Subsidiary and the Fair Market Value of the assets
of such Unrestricted Subsidiary at the time it is
51
redesignated as a Subsidiary. For purposes of the preceding clause (C)(2), the
value of the aggregate net proceeds received by the Company upon the issuance of
Capital Stock upon the conversion of convertible Indebtedness or upon the
exercise of options, warrants or rights will be the net cash proceeds received
upon the issuance of such Indebtedness, options, warrants or rights plus the
incremental cash amount received by the Company upon the conversion or exercise
thereof.
None of the foregoing provisions will prohibit (i) the payment of any
dividend within 60 days after the date of its declaration, if at the date of
declaration such payment would be permitted by the foregoing paragraph; (ii) so
long as no Default or Event of Default shall have occurred and be continuing,
the redemption, repurchase or other acquisition or retirement of any shares of
any class of Capital Stock of the Company or any Subsidiary of the Company in
exchange for, or out of the net cash proceeds of, a substantially concurrent (x)
capital contribution to the Company from any Person (other than a Subsidiary of
the Company) or (y) issue and sale of other shares of Capital Stock (other than
Redeemable Capital Stock) of the Company to any Person (other than to a
Subsidiary of the Company); provided, however, that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase or other
acquisition or retirement shall be excluded from clause (C)(2) of the preceding
paragraph; (iii) so long as no Default or Event of Default shall have occurred
and be continuing, any redemption, repurchase or other acquisition or retirement
of Subordinated Indebtedness by exchange for, or out of the net cash proceeds of
a substantially concurrent (x) capital contribution to the Company from any
Person (other than a Subsidiary of the Company) or (y) issue and sale of (1)
Capital Stock (other than Redeemable Capital Stock) of the Company to any
Person (other than to a Subsidiary of the Company); provided, however, that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase or other acquisition or retirement shall be excluded from clause
(C)(2) of the preceding paragraph; or (2) Indebtedness of the Company issued to
any Person (other than a Subsidiary of the Company), so long as such
Indebtedness is Subordinated Indebtedness which (x) has no Stated Maturity
earlier than the Stated Maturity of the Subordinated Indebtedness so purchased,
exchanged, redeemed, acquired or retired, (y) has an Average Life to Stated
Maturity equal to or greater than the remaining Average Life to Stated Maturity
of the Subordinated Indebtedness so purchased, exchanged, redeemed, acquired or
retired, and (z) is subordinated to the Notes in the same manner and at least to
the same extent as the Subordinated Indebtedness so purchased, exchanged,
redeemed, acquired or retired; (iv) so long as no Default or Event of Default
shall have occurred and be continuing, any redemption, repurchase or other
acquisition or retirement of Pari Passu Indebtedness by exchange for, or out of
the net cash proceeds of, a substantially concurrent (x) capital contribution to
the Company from any Person (other than a Subsidiary of the Company) or (y)
issue and sale of (1) Capital Stock (other than
52
Redeemable Capital Stock) of the Company to any Person (other than to a
Subsidiary of the Company); provided, however, that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase or other
acquisition or retirement is excluded from clause (C)(2) of the preceding
paragraph; or (2) Indebtedness of the Company issued to any Person (other than a
Subsidiary of the Company), so long as such Indebtedness is Subordinated
Indebtedness or Pari Passu Indebtedness which (x) has no Stated Maturity earlier
than the Stated Maturity of the Pari Passu Indebtedness so purchased, exchanged,
redeemed, acquired or retired and (y) has an Average Life to Stated Maturity
equal to or greater than the remaining Average Life to Stated Maturity of the
Pari Passu Indebtedness so purchased, exchanged, redeemed, acquired or retired;
(v) Investments constituting Restricted Payments made as a result of the receipt
of non-cash consideration from any Asset Sale made pursuant to and in compliance
with Section 4.13 or any transaction excepted from the definition of Asset Sale
pursuant to the last sentence of such definition; (vi) so long as no Default or
Event of Default has occurred and is continuing, repurchases by the Company, or
the declaration and payment of a dividend to RH Holdings, the proceeds of which
are to be used for the purchase of Common Stock of RH Holdings or of limited
partnership interests in a partnership holding such Common Stock) from employees
of the Company or any of its Subsidiaries or their authorized representatives
upon the death, disability or termination of employment of such employees, in an
aggregate amount not exceeding $500,000 in any calendar year; (vii) other
Restricted Payments not to exceed $2,500,000; provided that at the time such
Restricted Payment is made, the ratio of the aggregate principal amount of
Indebtedness on a pro forma basis after giving effect to any Indebtedness
incurred in connection with such Restricted Payment to Consolidated Cash Flow
for the four full fiscal quarters immediately preceding the date of such
Restricted Payment shall be less than or equal to 6.00:1; (viii) any payments
permitted to be made pursuant to clauses (ii) through (vi) of the proviso set
forth in Section 4.14, (ix) payments to RH Holdings in an amount sufficient to
pay (a) director's fees and the reasonable expenses of directors, (b)
accounting, legal or other administrative expenses incurred by RH Holdings
relating to the operations of the Company in the ordinary course of business and
(c) so long as RH Holdings files consolidated income tax returns which include
the Company, payments to RH Holdings in an amount equal to the amount of income
tax that the Company would have paid if it had filed consolidated tax returns on
a separate-company basis or (x) payments to RH Holdings in an amount sufficient
to consummate the Acquisition Transaction; provided that, subsequent to the
consummation of the Acquisition Transaction, the Company shall deliver to the
Trustee an Officers' Certificate setting forth the amount of any payments made
pursuant to clause (x). In computing the amount of Restricted Payments
previously made for purposes of clause (C) of the preceding paragraph,
Restricted Payments made under the
53
preceding clauses (v) and (vi) shall be included and clauses (i), (ii), (iii),
(iv), (vii), (viii), (ix) and (x) shall not be so included.
SECTION 4.10. Limitation on Issuances and Sale of Preferred Stock
by Subsidiaries.
The Company (a) will not permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or a Wholly-Owned Subsidiary of the
Company) and (b) will not permit any Person (other than the Company or a
Wholly-Owned Subsidiary of the Company) to own any Preferred Stock of any
Subsidiary of the Company; provided, however, that this covenant shall not
prohibit the issuance and sale of (x) all, but not less than all, of the issued
and outstanding Capital Stock of any Subsidiary of the Company owned by the
Company or any of its Subsidiaries in compliance with the other provisions of
this Indenture (including, without limitation, Section 4.13); (y) directors'
qualifying shares or investments by foreign nationals mandated by applicable law
or (z) issuances of Preferred Stock to former owners of funeral homes acquired
by the Company or any Subsidiary of the Company; provided that the sum of (i)
the aggregate Fair Market Value of such Preferred Stock and (ii) the aggregate
Fair Market Value of all Investments permitted under clause (vi) of the
definition of "Permitted Investments" shall not exceed $5,000,000 at any time
outstanding.
SECTION 4.11. Limitation on Liens.
The Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Liens of any kind against or upon
any of its property or assets, or any proceeds therefrom, unless (x) in the case
of Liens securing Subordinated Indebtedness, the Notes are secured by a Lien on
such property, assets or proceeds that is senior in priority to such Liens and
(y) in all other cases, the Notes are equally and ratably secured, except for
(a) Liens existing as of the Issue Date; (b) Liens securing the Notes; (c) Liens
on assets of the Company securing Senior Indebtedness and Liens on assets of
Subsidiaries of the Company securing Indebtedness permitted to be incurred by
them under this Indenture; (d) Liens in favor of the Company; (e) Liens securing
Indebtedness which is incurred to refinance Indebtedness which has been secured
by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided, however, that such
Liens do not extend to or cover any property or assets of the Company or any of
its Subsidiaries not securing the Indebtedness so refinanced; and (f) Permitted
Liens.
SECTION 4.12. Change of Control.
54
Upon the occurrence of a Change of Control (the date of such
occurrence, the "Change of Control Date"), the Company shall make an offer to
purchase (the "Change of Control Offer") and shall purchase all Notes properly
tendered into the Change of Control Offer and not withdrawn, on a Business Day
(the "Change of Control Purchase Date") not more than 60 nor less than 30 days
following the date the notice of a Change of Control Offer is mailed to holders
of the Notes, all Notes then outstanding at a purchase price ("Change of Control
Purchase Price") equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the Change of Control Purchase Date.
Notice of a Change of Control Offer shall be mailed by the Company not
later than the 30th day after the Change of Control Date to the Holders of Notes
at their last registered addresses with a copy to the Trustee and the Paying
Agent. The Change of Control Offer shall remain open from the time of mailing
for at least 20 Business Days and until 5:00 p.m., New York City time, on the
Change of Control Purchase Date. The notice, which shall govern the terms of the
Change of Control Offer, shall include such disclosures as are required by law
and shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.12 and that all Notes validly tendered in connection with the Change
of Control Offer and not withdrawn will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Note, the Change of Control Purchase Date and the date on which
the Change of Control Offer expires;
(c) that any Note not tendered for payment will continue to accrue
interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of the
purchase price, any Note accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Purchase Date;
(e) that Holders electing to have Notes purchased pursuant to a Change
of Control Offer will be required to surrender their Notes, together with a duly
completed "Option of Holder to Elect Purchase" notice substantially in the form
of Exhibit C hereto, to the Paying Agent at the address specified in the notice
prior to 5:00 p.m., New York City time, on the third Business Day prior to the
Change of Control Purchase Date and must complete any form of letter of
transmittal proposed by the Company and reasonably acceptable to the Trustee and
the Paying Agent;
55
(f) that Holders of Notes will be entitled to withdraw their election
if the Paying Agent receives, not later than 5:00 p.m., New York City time, on
the first Business Day immediately prior to the Change of Control Purchase Date,
a tested telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes the Holder delivered for purchase, the
Note certificate number (if any) and a statement that such Holder is withdrawing
its election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part will be issued
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered;
(h) the instructions that Holders must follow in order to tender their
Notes; and
(i) information concerning the business of the Company, information
with respect to pro forma historical financial information after giving effect
to such Change of Control and such other information concerning the
circumstances and relevant facts regarding such Change of Control Offer as would
be material to a Holder of Notes in connection with the decision of such Holder
as to whether or not it should tender Notes pursuant to the Change of Control
Offer.
On the Change of Control Purchase Date, the Company shall (i) accept for
payment Notes or portions thereof validly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so
accepted together with an Officers' Certificate setting forth the Notes or
portions thereof tendered to and accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any unpurchased portion of the Note surrendered. Any Notes not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company will publicly announce the results of the Change of Control
Offer not later than the first Business Day following the Change of Control
Purchase Date.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in a
manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
56
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.13. Disposition of Proceeds of Asset Sales.
(a) The Company will not, and will not permit any of its Subsidiaries
to, make any Asset Sale unless (i) the Company or such 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 shares or assets sold or otherwise disposed of and
(ii) at least 75% of such consideration consists of cash or Cash Equivalents. To
the extent the Net Cash Proceeds of any Asset Sale are not applied to repay the
Bank Term Facility or any other Senior Indebtedness or permanently reduce the
commitments under the Revolving Credit Facility, the Company or such Subsidiary,
as the case may be, may, within 365 days from the receipt of the Net Cash
Proceeds, apply such Net Cash Proceeds to an investment in properties and assets
that replace the properties and assets that were the subject of such Asset Sale
or in properties and assets that will be used in the business of the Company and
its Subsidiaries existing on the Issue Date or in businesses related thereto
("Replacement Assets"). Any Net Cash Proceeds from any Asset Sale that are
neither used to repay the Bank Term Facility or any other Senior Indebtedness,
or permanently reduce the commitments under the Revolving Credit Facility, nor
invested in Replacement Assets within the 365-day period described above
constitute "Excess Proceeds" subject to disposition as provided below.
(b) When the aggregate amount of Excess Proceeds equals or exceeds
$5,000,000, the Company shall, not more than 40 Business Days thereafter, make
an offer to purchase (an "Asset Sale Offer") from all Holders, on a date (the
"Asset Sale Purchase Date") which is not less than 20 Business Days nor more
than 40 Business Days after the date of notice of such Asset Sale Offer
delivered pursuant to Section 4.13(d), an aggregate principal amount of Notes
equal to such Excess Proceeds, at a price payable in cash equal to 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
to the Asset Sale Purchase Date (the "Asset Sale Offer Price").
(c) Whenever Excess Proceeds received by the Company and its
Subsidiaries exceed $5,000,000, such Excess Proceeds shall, prior to the
purchase of Notes, be set aside by the Company or such Subsidiary, as the case
may be, in a separate account pending (i) deposit with the depositary of the
amount required to
57
purchase the Notes tendered or (ii) delivery by the Company of the Asset Sale
Offer Price to the Holders of the Notes pursuant to an Asset Sale Offer. Such
Excess Proceeds may be invested in Cash Equivalents, as directed by the Company,
having a maturity date which is not later than the earliest possible date for
purchase or redemption of Securities pursuant to the Asset Sale Offer. The
Company shall be entitled to any interest or dividends accrued, earned or paid
on such Cash Equivalents.
(d) Notice of an Asset Sale Offer shall be mailed by the Company to
all Holders of Notes not less than 20 Business Days nor more than 40 Business
Days before the Asset Sale Purchase Date at their last registered address with a
copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open
from the time of mailing until at least 5:00 p.m., New York City time, on the
third Business Day prior to the Asset Sale Purchase Date. The notice, which
shall govern the terms of the Asset Sale Offer, shall include such disclosures
as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.13;
(2) the Asset Sale Offer Price (including the amount of accrued
interest, if any) for each Note, the Asset Sale Purchase Date and the date on
which the Asset Sale Offer expires;
(3) that any Note not tendered or accepted for payment will continue
to accrue interest in accordance with the terms thereof;
(4) that, unless the Company shall default in the payment of the Asset
Sale Offer Price, any Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have Notes purchased pursuant to an Asset
Sale Offer will be required to surrender their Notes, together with a duly
completed "Option of Holder to Elect Purchase" notice substantially in the form
of Exhibit C hereto, to the Paying Agent at the address specified in the notice
prior to 5:00 p.m., New York City time, on the third Business Day prior to the
Asset Sale Purchase Date and must complete any form of letter of transmittal
proposed by the Company and reasonably acceptable to the Trustee and the Paying
Agent;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on the
first Business Day immediately prior to the Asset Sale Purchase Date, a tested
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal
58
amount of Notes the Holder delivered for purchase, the Note certificate number
(if any) and a statement that such Holder is withdrawing its election to have
such Notes purchased;
(7) that if the aggregate principal amount of Notes validly tendered
and not withdrawn by the Holders exceeds the Excess Proceeds, the Company shall
purchase Notes on a pro rata basis among the Notes tendered (with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Notes are purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered;
(9) the instructions that Holders must follow in order to tender their
Notes; and
(10) information concerning the business of the Company, information
with respect to pro forma historical financial information after giving effect
to such Asset Sale and Asset Sale Offer and such other information concerning
the circumstances and relevant facts regarding such Asset Sale Offer as would be
material to a Holder of Notes in connection with the decision of such Holder as
to whether or not it should tender Notes pursuant to the Asset Sale Offer.
(e) On the Asset Sale Purchase Date, the Company shall (i) accept for
payment, on a pro rata basis, Notes or portions thereof validly tendered
pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, in an amount sufficient to pay the Asset Sale Offer
Price of all Notes or portions thereof so tendered and accepted and (iii)
deliver to the Trustee the Notes so accepted together with an Officers'
Certificate setting forth the Notes or portions thereof tendered to and accepted
for payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Notes so accepted payment in an amount equal to the Asset Sale Offer
Price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Note equal in principal amount to any unpurchased portion of the
Note surrendered. Any Notes not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer not later than the first Business
Day following the Asset Sale Purchase Date. To the extent that the aggregate
principal amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use such deficiency for general corporate
purposes. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero. For purposes of this Section 4.13, the Trustee
shall act as Paying Agent.
60
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations thereunder, in the event that the Company is required to
repurchase Notes pursuant to the Asset Sale Offer.
SECTION 4.14. Limitation on Transactions with Interested Persons.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, transfer,
disposition, purchase, exchange or lease of assets, property or services) with,
or for the benefit of, any Affiliate of the Company or any beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable immediately,
after the passage of time or upon the happening of an event) of 5% or more of RH
Holdings' Common Stock at any time outstanding ("Interested Persons"), unless
(a) such transaction or series of related transactions is on terms that are no
less favorable to the Company or such Subsidiary, as the case may be, than those
which could have been obtained in a comparable transaction at such time from
Persons who are not Affiliates of the Company or Interested Persons, (b) with
respect to a transaction or series of transactions (other than commercial
arrangements with any limited partner of Blackstone Capital Partners II Merchant
Banking Fund L.P. or any Affiliate of such limited partners) involving aggregate
payments or value equal to or greater than $5,000,000, the Company has obtained
a written opinion from an Independent Financial Advisor stating that the terms
of such transaction or series of transactions are fair to the Company or its
Subsidiary, as the case may be, from a financial point of view and (c) with
respect to a transaction or series of transactions (other than commercial
arrangements with any limited partner of Blackstone Capital Partners II Merchant
Banking Fund L.P. or any Affiliate of such limited partners) involving aggregate
payments or value equal to or greater than $1,000,000, the Company shall have
delivered an Officers' Certificate to the Trustee certifying that such
transaction or series of transactions complies with the preceding clause (a)
and, if applicable, certifying that the opinion referred to in the preceding
clause (b) has been delivered and that such transaction or series of
transactions has been approved by a majority of the Board of Directors of the
Company; provided, however, that this Section 4.14 will not restrict the Company
from (i) paying dividends in respect of its Capital Stock permitted under
Section 4.09, (ii) paying reasonable and customary fees and indemnities to
directors of the Company who are not employees of the Company, (iii) making
loans or advances to, or providing indemnities of, officers, employees or
consultants of the Company and its subsidiaries (including travel and moving
expenses) in the ordinary course of business for bona fide business purposes of
the Company or
60
such Subsidiary not in excess of $1,000,000 in the aggregate at any one time
outstanding, (iv) making loans to officers (or a partnership comprised of such
officers) for the purpose of purchasing common stock of RH Holdings and making
any payment required or specifically permitted by the terms of the
Administrative Services Agreement, (v) paying an annual monitoring fee of
$250,000 (plus any increase thereof which may be made to account for inflation)
to Blackstone Management Partners L.P. or any of its Affiliates designated by
Blackstone Management Partners L.P., (vi) making any payment to RH Holdings
permitted by Section 4.09 or (vii) entering into any transaction with any of its
Wholly-Owned Subsidiaries or restrict any Subsidiary from entering into any
transaction with any other Wholly-Owned Subsidiary.
SECTION 4.15. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary of the
Company to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock or any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness owed to
the Company or any other Subsidiary of the Company, (c) make loans or advances
to, or any other Investment in, the Company or any other Subsidiary of the
Company, (d) transfer any of its properties or assets to the Company or any
other Subsidiary of the Company or (e) guarantee any Indebtedness of the Company
or any other Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) customary
non-assignment provisions of any contract or any lease governing a leasehold
interest of the Company or any Subsidiary of the Company, (iii) customary
restrictions on transfers of property subject to a Lien permitted under this
Indenture, (iv) any agreement or other instrument of a Person acquired by the
Company or any Subsidiary of the Company (or a Subsidiary of such Person) in
existence at the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the properties
or assets of the Person, so acquired, (v) provisions contained in agreements or
instruments relating to Indebtedness which prohibit the transfer of all or
substantially all of the assets of the obligor thereunder unless the transferee
shall assume the obligations of the obligor under such agreement or instrument,
(vi) any restriction with respect to a Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary pending the closing of such
sale or disposition, (vii) any encumbrance or restriction arising or agreed to
in the ordinary course of business and that does
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not, individually or in the aggregate, detract from the value of the property or
assets of the Company or any Subsidiary in any manner material to the Company or
such Subsidiary and (viii) encumbrances and restrictions under agreements in
effect on the Issue Date, including the Bank Credit Agreement, and encumbrances
and restrictions in permitted refinancings or replacements of Indebtedness
evidenced by the agreements referred to in this clause (viii) which are no less
favorable to the Holders than those contained in the Indebtedness so refinanced
or replaced.
SECTION 4.16. Limitation on the Issuance of Other Senior Subordinated
Indebtedness.
The Company will not, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) that is subordinate in right of payment to any
Indebtedness of the Company, unless such Indebtedness (x) is pari passu with or
(y) is subordinate in right of payment to the Notes in the same manner and at
least to the same extent as the Notes are subordinated to Senior Indebtedness.
SECTION 4.17. Limitations on Sale-Leaseback Transactions.
The Company will not, and will not permit any of its Subsidiaries to,
enter into any Sale-Leaseback Transaction with respect to any property of the
Company or any of its Subsidiaries. Notwithstanding the foregoing, the Company
and its Subsidiaries may enter into Sale-Leaseback Transactions; provided that
(a) the Attributable Value of such Sale-Leaseback Transaction shall be deemed to
be Indebtedness of the Company or such Subsidiary, as the case may be, and (b)
either (i) after giving pro forma effect to any such Sale-Leaseback Transaction
and the foregoing clause (a), the Company would be able to incur $1.00 of
additional Indebtedness pursuant to the first paragraph of Section 4.08
(assuming a market rate of interest with respect to such additional
Indebtedness) or (ii) the proceeds of such Sale-Leaseback Transaction are
applied to repay existing Indebtedness (other than Indebtedness outstanding
under any revolving credit facility).
SECTION 4.18. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any, or interest on the Notes 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
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extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc..
The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and the Company
will not permit any of its Subsidiaries to enter into any such transaction or
series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the properties and assets of
the Company or the Company and its Subsidiaries, taken as a whole, to any other
Person or Persons, unless at the time of and after giving effect thereto (a)
either (i) if the transaction or series of transactions is a merger or
consolidation, the Company shall be the surviving Person of such merger or
consolidation, or (ii) the Person formed by such consolidation or into which the
Company or such Subsidiary is merged or to which the properties and assets of
the Company or such Subsidiary, as the case may be, are transferred (any such
surviving Person or transferee Person being the "Surviving Entity") shall be a
corporation organized and existing under the laws of the United States of
America, any state thereof, the District of Columbia, Canada or any province
thereof and shall expressly assume by a supplemental indenture executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, all
the obligations of the Company under the Notes and this Indenture, and in each
case, this Indenture shall remain in full force and effect; (b) immediately
before and immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing; (c) the Company or the Surviving
Entity, as the case may be, after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such
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transaction or series of transactions), could incur $1.00 of additional
Indebtedness pursuant to the first paragraph of Section 4.08 (assuming a market
rate of interest with respect to such additional Indebtedness); and (d)
immediately after giving effect to such transaction or series of transactions on
a pro forma basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), the Consolidated Net Worth of the Company or the
Surviving Entity, as the case may be, is at least equal to the Consolidated Net
Worth of the Company immediately before such transaction or series of
transactions.
Notwithstanding the foregoing clauses (b), (c) and (d), (i) any
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (ii) the Company may merge with an
Affiliate incorporated solely for the purpose of reincorporating the Company in
another jurisdiction to realize tax or other benefits.
In connection with any consolidation, merger, transfer, lease,
assignment or other disposition contemplated hereby, the Company shall deliver,
or cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, transfer, lease, assignment or
other disposition and any supplemental indenture in respect thereof comply with
the requirements under the foregoing clause (a) of this Section 5.01 and that
all conditions precedent provided for in this Indenture relating to the
transaction or series of transactions have been complied with, provided,
however, that solely for purposes of computing amounts described in subclause
(C) of Section 4.09, any such successor Person shall only be deemed to have
succeeded to and be substituted for the Company with respect to periods
subsequent to the effective time of such merger, consolidation or transfer of
assets.
SECTION 5.02. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company in accordance with Section 5.01 hereof, the successor
person or persons formed by such consolidation or into which the Company is
merged or the successor person to which such sale, assignment, conveyance,
transfer, lease or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such successor had been
named as the Company herein; provided, however, that solely for purposes of
computing amounts described in subclause (C) of Section 4.09, any such successor
Person shall only be deemed to have succeeded to and be substituted for the
Company with respect
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to periods subsequent to the effective time of such merger, consolidation or
transfer of assets.
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" means any of the following events:
(a) default in the payment of the principal of or premium, if any, on
any Note when the same becomes due and payable (upon Stated Maturity,
acceleration, optional redemption, required purchase, scheduled principal
payment or otherwise); or
(b) default in the payment of an installment of interest on any of the
Notes, when the same becomes due and payable, and any such Default continues for
a period of 30 days; or
(c) failure to perform or observe any other term, covenant or agreement
contained in the Notes or this Indenture (other than a Default specified in
clause (a) or (b) above) and such Default continues for a period of 30 days
after written notice of such Default requiring the Company to remedy the same
shall have been given (i) to the Company by the Trustee or (ii) to the Company
and the Trustee by Holders of at least 25% in aggregate principal amount of the
Notes then outstanding; or
(d) default or defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which the
Company or any Subsidiary of the Company then has outstanding Indebtedness in
excess of $5,000,000, individually or in the aggregate, and either (i) such
Indebtedness has not been paid at final maturity or (ii) such default or
defaults have resulted in the acceleration of the maturity of such Indebtedness;
or
(e) one or more judgments, orders or decrees of any court or regulatory
or administrative agency of competent jurisdiction for the payment of money in
excess of $5,000,000, either individually or in the aggregate, shall be entered
against the Company or any Subsidiary of the Company or any of their respective
properties and shall not be discharged or fully bonded and there shall have been
a period of 60 days after the date on which any period for appeal has expired
and
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during which a stay of enforcement of such judgment, order or decree, shall
not be in effect; or
(f) the Company or any Significant Subsidiary of the Company pursuant to
or under or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding;
(2) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(3) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(4) makes a general assignment for the benefit of its creditors; or
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Company or any Significant Subsidiary of
the Company in an involuntary case or proceeding,
(2) appoints a Custodian of the Company or any Significant Subsidiary
of the Company for all or substantially all of its properties, or
(3) orders the liquidation of the Company or any Significant Subsidiary
of the Company,
and in each case the order or decree remains unstayed and in effect for 60 days.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall
not be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to a Trust Officer at the Corporate Trust
Office of the Trustee by the Company, the Paying Agent, any Holder, any holder
of Senior Indebtedness or any of their respective agents.
SECTION 6.02. Acceleration.
If an Event of Default (other than as specified in Sections 6.01(f)and
(g) with respect to the Company) shall occur and be continuing, the Trustee, by
written notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, by written notice to the Trustee
and the Company, may declare the principal of, premium, if any, and accrued and
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unpaid interest, if any, on all of the Notes then outstanding to be due and
payable immediately, upon which declaration, all amounts payable in respect of
the Notes shall be immediately due and payable; provided, however, that so long
as the Bank Credit Agreement shall be in force and effect, if an Event of
Default shall have occurred and be continuing (other than an Event of Default
specified in Sections 6.01(f) and (g) with respect to the Company), any such
acceleration shall not be effective until the earlier to occur of (a) five
Business Days following delivery of a notice of such acceleration to the Bank
Agent under the Bank Credit Agreement and (b) the acceleration of any
Indebtedness (or other amounts) under the Bank Credit Agreement. If an Event of
Default specified in Sections 6.01(f) and (g) with respect to the Company occurs
and is continuing, then the principal of, premium, if any, and accrued and
unpaid interest, if any, on all of the outstanding Notes shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder of Notes.
After a declaration of acceleration under this Indenture, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Notes, by written notice to the Company and the Trustee, may rescind
such declaration if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, (ii) all overdue interest on all Notes,
(iii) the principal of and premium, if any, on any Notes which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Notes, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal at the rate borne
by the Notes which has become due otherwise than by such declaration of
acceleration; (b) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and (c) all Events of Default, other than
the non-payment of principal of, premium, if any, and interest on the Notes that
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 6.04.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right subsequent therein.
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
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principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes may be
enforced by the Trustee even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to the provisions of Section 6.07 and 9.02, the Holders of not
less than a majority in aggregate principal amount of the outstanding Notes by
notice to the Trustee may, on behalf of the Holders of all the Notes, waive any
existing Default or Event of Default and its consequences, except a Default or
Event of Default specified in Section 6.01(a) or 6.01(b) or in respect of any
provision hereof which cannot be modified or amended without the consent of each
Holder so affected pursuant to Section 9.02. When a Default or Event of Default
is so waived, it shall be deemed cured and shall cease to exist.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in aggregate principal amount
of the outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided, however, that
the Trustee may refuse to follow any direction (a) that conflicts with any rule
of law or this Indenture, (b) that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder, or (c) that may expose the
Trustee to personal liability unless the Trustee has been provided reasonable
indemnity against any loss or expense caused by its following such direction;
and provided, further, that the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
No Holder of any Notes shall have any right to institute any proceeding
or pursue any remedy with respect to this Indenture or the Notes unless:
(a) the Holder gives written notice to the Trustee of a continuing
Event of Default;
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(b) the Holders of at least 25% in aggregate principal amount of the
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee reasonable indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, provision of indemnity;
and
(e) during such 30-day period the Holders of a majority in aggregate
principal amount of the outstanding Notes do not give the Trustee a direction
which is inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of, premium, if any, or
accrued interest on, such Note on or after the respective due dates set forth in
such Note.
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
SECTION 6.07. Right of Holders to Receive Payment.
Notwithstanding any other provision in this Indenture, the right of any
Holder of a Note to receive payment of the principal of, premium, if any, and
interest on such Note, on or after the respective Stated Maturities expressed in
such Note, or to bring suit for the enforcement of any such payment on or after
the respective Stated Maturities, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in clause (a) or (b) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company, or any other obligor on the
Notes, for the whole amount of principal of, premium, if any, and accrued
interest remaining unpaid, together with interest on overdue 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 Notes
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 and any other amounts due
the Trustee under Section 7.08.
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SECTION 6.09. Trustee May File Proofs of Claims.
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 Holders allowed in
any judicial proceedings relative to the Company or the Subsidiaries of the
Company (or any other obligor upon the Notes), their creditors or their 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
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.08. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.08.
Second: subject to Article 10, to Holders for interest accrued on the
Notes, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for interest;
Third: subject to Article 10, to Holders for principal amounts
(including any premium) owing under the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal (including any premium); and
Fourth: the balance, if any, 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.
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SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
aggregate principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or any Note and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties.
(a) In case an Event of 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 person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default,
(1) the Trustee need perform only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
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(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 furnished to the
Trustee and conforming to the requirements of this Indenture; but 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 be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture, but need not investigate the accuracy of mathematical
calculations or other facts stated therein.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own 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 in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(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.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01 hereof and the provisions of TIA Section 315:
(a) the Trustee may rely on any document reasonably 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 consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
which
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shall conform to Sections 11.04 and 11.05. 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 its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of its own negligence.
(e) the Trustee may consult with counsel of its own choosing and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection 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) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
SECTION 7.03. Individual Rights of Trustee.
The Trustee, any Paying Agent, Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 7.11 and 7.12 and TIA Sections 310
and 311, may otherwise deal with the Company and its Subsidiaries with the same
rights it would have if it were not the Trustee, Paying Agent, Registrar or such
other agent; provided that there shall be excluded from the operation of TIA
Section 310(b), any indenture or indentures under which other securities, or
certificates of interest or participations in other securities, of the Company
are outstanding if the requirements for exclusion set forth in TIA
Section 310(b)(i) are met.
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SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes, it shall not be accountable for the Company's
use or application of the proceeds from the Notes, it shall not be responsible
for the use or application of any money received by any Paying Agent other than
the Trustee and it shall not be responsible for any statement in the Notes other
than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
Default or Event of Default within 30 days after obtaining knowledge thereof;
provided, however, that, except in the case of a Default or an Event of Default
in the payment of the principal of, premium, if any, or interest on any Note,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee of the board of directors or a
committee of the directors of the Trustee and/or Trust Officers in good faith
determines that the withholding of such notice is in the interest of the
Holders.
SECTION 7.06. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required herein
or by law. The Trustee shall not be under any liability for interest on any
moneys received by it hereunder, except as the Trustee may agree with the
Company.
SECTION 7.07. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA Section 313(a) shall have occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each securities exchange, if
any, on which the Notes are listed.
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The Company shall notify the Trustee in writing if the Notes become
listed on any securities exchange.
SECTION 7.08. Compensation and Indemnity.
The Company covenants and agrees to pay the Trustee from time to time
reasonable compensation 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 incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss, damage, claim or liability incurred by it arising out of or
in connection with the administration of this trust and its rights or duties
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. 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 need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.08, the
Trustee shall have a Lien prior to the Notes on all assets held or collected by
the Trustee, in its capacity as Trustee, except assets held in trust to pay
principal of, premium, if any, or interest on particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Sections 6.01(f) or (g), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.08 and any Lien arising
hereunder shall survive the resignation or removal of any trustee, the discharge
of the Company's obligations pursuant to Article 8 and/or the termination of
this Indenture, including the termination and rejection hereof in any bankruptcy
proceedings to the extent permitted by applicable law.
SECTION 7.09. Replacement of Trustee.
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The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor trustee
with the Company's prior written consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt or an insolvent or an or
der for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or (d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. The Trustee shall be
entitled to payment of its fees and reimbursement of its expenses while acting
as Trustee, and to the extent such amounts remain unpaid, the Trustee that has
resigned or has been removed shall retain the Lien afforded by Section 7.08.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Notes may, with the Company's
prior written consent, 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. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.08, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
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 Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.11, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this
Section 7.09, the Company's obligations under Section 7.08 shall continue for
the benefit of the retiring Trustee.
SECTION 7.10. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall, if
such resulting, surviving or transferee corporation or national banking
association is otherwise eligible hereunder, be the successor Trustee.
SECTION 7.11. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Sections 310(a)(1) and 310(a)(5) and which shall
have a combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 7.12. 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). If the present or any future Trustee
shall resign or be removed, it shall be subject to TIA Section 311(a) to the
extent provided therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations.
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The Company may terminate its obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid or Notes
for whose payment money has theretofore been deposited with the Trustee or the
Paying Agent in trust or segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in Section 8.04) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or if:
(a) either (i) pursuant to Article 3, the Company shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of the
redemption of all of the Notes under arrangements satisfactory to the Trustee
for the giving of such notice or (ii) all Notes have otherwise become due and
payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee reasonably satisfactory to the Trustee,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit of
the Holders for that purpose, money in such amount as is sufficient without
consideration of reinvestment of such interest, to pay principal of, premium, if
any, and interest on the outstanding Notes to maturity or redemption, as
certified in a certificate of a nationally recognized firm of independent public
accountants; provided that the Trustee shall have been irrevocably instructed to
apply such money to the payment of said principal, premium, if any, and interest
with respect to the Notes and, provided, further, that from and after the time
of deposit, the money deposited shall not be subject to the rights of holders of
Senior Indebtedness pursuant to the provisions of Article 10;
(c) no Default or Event of Default with respect to this Indenture or the
Notes shall have occurred and be continuing on the date of such deposit or shall
occur as a result of such deposit and such deposit will not result in a breach
or violation of, or constitute a default under, any other instrument to which
the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it hereunder;
and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligation under the
Notes and this Indenture have been complied with.
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Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02 and 7.08 shall
survive until the Notes are no longer outstanding pursuant to the last paragraph
of Section 2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.08, 8.03, 8.04 and 8.05 shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of the Board of
Directors of the Company, at any time, with respect to the Notes, elect to have
either paragraph (b) or paragraph (c) below be applied to the outstanding Notes
upon compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of paragraph (e) below and the other
Sections of and matters under this Indenture referred to in (i) and (ii) below,
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), and
Holders of the Notes and any amounts deposited under paragraph (d) below shall
cease to be subject to any obligations to, or the rights of, any holder of
Senior Indebtedness under Article 10 or otherwise, except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in such paragraph,
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (ii) the Company's obligations with respect to
such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07 and 4.02, and, with
respect to the Trustee, under Section 7.08, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (iv) this Article 8. Subject
to compliance with this Section 8.02, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) below with respect to the Notes.
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(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Articles Five and Ten and
in Sections 4.07 through 4.17 with respect to the outstanding Notes on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Notes shall thereafter be deemed to be not "outstanding"
for the purpose of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder
and Holders of the Notes and any amounts deposited under paragraph (d) below
shall cease to be subject to any obligations to, or the rights of, any holder of
Senior Indebtedness under Article 10 or otherwise. For this purpose, such
covenant defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01(c), but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.11 who shall agree to comply with the provisions of this Section 8.02
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Notes, (x) cash, in United States
dollars, in an amount or (y) direct non-callable obligations of, or non-callable
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligation the full faith and credit of the United States is
pledged ("U.S. Government Obligations") maturing as to principal, premium, if
any, and interest in such amounts of cash, in United States dollars, and at such
times as are sufficient without consideration of any reinvestment of such
interest, to pay principal of, premium, if any, and interest on the outstanding
Notes not later than one day before the due date of any payment, or (z) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge principal of,
premium, if any, and interest on the outstanding Notes (except lost, stolen or
destroyed Notes which have been replaced or paid)
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on the Final Maturity Date or otherwise in accordance with the terms of this
Indenture and of such Notes; provided, however, that the Trustee (or other
qualifying trustee) shall have received an irrevocable written order from the
Company instructing the Trustee (or other qualifying trustee) to apply such
money or the proceeds of such U.S. Government Obligations to said payments with
respect to the Notes;
(2) no Default or Event of Default or event which with notice or lapse
of time or both would become a Default or an Event of Default with respect to
the Notes shall have occurred and be continuing on the date of such deposit or,
insofar as Section 6.01(a) is concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
(3) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of the
Company;
(4) such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or any other material agreement or instrument to which the Company is
a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for Federal income tax
purposes as a result of such legal defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such legal defeasance had not occurred;
(6) in the case of an election under paragraph (c) above, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance
had not occurred;
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(7) in the case of an election under either paragraph (b) or (c) above,
an Opinion of Counsel to the effect that, (x) the trust funds will not be
subject to any rights of any holders of Senior Indebtedness, including, without
limitation, those rights arising under this Indenture, and (y) after the 91st
day following the deposit, the trust funds will not be subject to the effect of
any applicable Bankruptcy Law; provided, however, that if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Company, no opinion needs to be given as to the effect of such
laws on the trust funds except the following: (A) assuming such trust funds
remained in the Trustee's possession prior to such court ruling to the extent
not paid to Holders of Notes, the Trustee will hold, for the benefit of the
Holders of Notes, a valid and enforceable security interest in such trust funds
that is not avoidable in bankruptcy or otherwise, subject only to principles of
equitable subordination, (B) the Holders of Notes will be entitled to receive
adequate protection of their interests in such trust funds if such trust funds
are used, and (C) no property, rights in property or other interests granted to
the Trustee or the Holders of Notes in exchange for or with respect to any of
such funds will be subject to any prior rights of any other person, subject only
to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code
(or any section of any other Bankruptcy Law having the same effect), but still
subject to the foregoing clause (B); and
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the legal defeasance under paragraph
(b) above or the covenant defeasance under paragraph (c) above, as the case may
be, have been complied with.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d)
above in respect of the outstanding Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent (other than the
Company or any Affiliate of the Company) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
duty to invest such funds or U.S. Government Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any,
and
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interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.01 and 8.02, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Notes.
SECTION 8.04. Repayment to Company.
Subject to Sections 7.08, 8.01 and 8.02, the Trustee shall promptly pay
to the Company, upon receipt by the Trustee of an Officers' Certificate, any
excess money, determined in accordance with Section 8.02, held by it at any
time; provided that the Trustee shall, upon payment of all obligations under
this Indenture and upon request of the Company, pay to the Company any excess
money held by it. The Trustee and the Paying Agent shall pay to the Company,
upon request of the Company, any money held by it for the payment of principal,
premium, if any, or interest that remains unclaimed for two years after payment
to the Holders is required. After payment to the Company, Holders entitled to
money must look solely 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 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had been made pursuant to this
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Indenture until such time as the Trustee is permitted to apply all such money or
U.S. Government Obligations in accordance with this Indenture; provided,
however, that if the Company has made any payment of principal of, premium, if
any, or interest on any Notes because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution of its Board of
Directors, and the Trustee may amend, waive or supplement this Indenture or the
Notes without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article 5;
(c) to provide for uncertificated Notes in addition to certificated
Notes;
(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 provide for the issuance of the Exchange Notes, which will have
terms substantially identical in all respects to the Initial Notes (except that
the transfer restrictions under the Securities Act contained in the Initial
Notes will be modified or eliminated, as appropriate), and which will be
treated, together with any outstanding Initial Notes, as a single issue of
securities;
(f) to provide for the guarantee of the Notes by The Xxxxxx Group
Inc.;
(g) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder; or
(h) to evidence and provide for the acceptance and appointment
hereunder by a successor Trustee with respect to the Notes.
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Notwithstanding the above, the Trustee and the Company may not make any
change that adversely affects the rights of any Holders hereunder. The Company
shall be required to deliver to the Trustee an Opinion of Counsel stating that
any such change made pursuant to paragraph (a) or (g) of this Section 9.01 does
not adversely affect the rights of any Holder.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.04, the Company, when authorized by a Board
Resolution of its Board of Directors, and the Trustee may amend this Indenture
or the Notes with the written consent of the Holders of not less than a majority
in aggregate principal amount of the Notes then outstanding, and the Holders of
not less than a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected, an amendment or waiver, including a waiver pursuant to
Section 6.04, may not:
(a) reduce the percentage in outstanding aggregate principal amount of
Notes the Holders of which must consent to an amendment, supplement or waiver of
any provision of this Indenture or the Notes;
(b) reduce or change the rate or time for payment of interest on any
Note;
(c) change the currency in which any Note, or any premium or interest
thereon, is payable;
(d) reduce the principal amount outstanding of or extend the Stated
Maturity of any Note or alter the redemption provisions with respect thereto;
(e) waive a default in the payment of the principal of, premium, if any,
or interest on, or redemption or an offer to purchase required hereunder with
respect to, any Note;
(f) make the principal of, premium, if any, or interest on any Note
payable in money other than that stated in the Note;
(g) modify this Section 9.02 or Section 6.07;
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(h) amend, alter, change or modify the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of Control or
make and consummate the offer with respect to any Asset Sale or modify any of
the provisions or definitions with respect thereto;
(i) modify or change any provision of this Indenture affecting the
subordination or ranking of the Notes in a manner adverse to the Holders; or
(j) impair the right to institute suit for the enforcement of any
payment on or with respect to the Notes.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holder of each Note affected thereby,
with a copy to the Trustee, 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 amendment, supplement or waiver.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment of or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder is a continuing consent by such Holder and every subsequent
Holder of that Note or portion of that Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of a Note prior to such amendment, supplement or waiver
becoming effective. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. Notwithstanding the above, nothing in this paragraph
shall impair the right of any Holder under Section 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the second
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and third sentences of the immediately preceding paragraph, those persons who
were Holders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such persons
continue to be Holders after such record date. Such consent shall be effective
only for actions taken within 120 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder; unless it makes a change described in any of clauses (a)
through (j) of Section 9.02; if it makes such a change, the amendment,
supplement or waiver shall bind every subsequent Holder of a Note or portion of
a Note that evidences the same debt as the consenting Holder's Note.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee shall (in accordance with the specific direction of the Company) request
the Holder of the Note to deliver it to the Trustee. The Trustee shall (in
accordance with the specific direction of the Company) place an appropriate
notation on the Note 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 Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.06. Trustee May Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 9 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture, that it is
not inconsistent herewith and that it will be valid and binding upon the Company
enforceable against the Company in accordance with its terms.
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ARTICLE 10
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article 10, the Indebtedness
represented by the Notes is hereby expressly made subordinate and subject in
right of payment as provided in this Article to the prior payment in full in
cash or Cash Equivalents of all amounts payable under all existing and future
Senior Indebtedness.
This Article 10 shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold Senior
Indebtedness; and such provisions are made for the benefit of the holders of
Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
SECTION 10.02. Payment over of Proceeds upon Dissolution.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its assets, or
(b) any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshaling of
assets or liabilities of the Company, then and in any such event:
(a) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents of all Senior Indebtedness
(including, in the case of Designated Senior Indebtedness, any interest accruing
subsequent to the filing of a petition for bankruptcy at the rate provided for
in the documentation governing such Designated Senior Indebtedness, whether or
not such interest is an allowed claim under applicable law) before the Holders
of the Notes are entitled to receive any payment or distribution of any kind or
character (excluding securities of the Company that are equity securities or are
subordinated in right of payment to all Senior Indebtedness that may at the time
be outstanding to substantially the same extent as, or to a greater extent than,
the Notes as provided in this Article; such securities are hereinafter
collectively referred to as "Permitted Junior Notes") on account of principal
of, premium, if any, or interest on, or any other obligations to the Holders in
respect of, the Notes; and
88
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (excluding Permitted Junior
Notes), by set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash or Cash Equivalents of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this
Section 10.02, the Trustee or the Holder of any Note shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, in respect of principal of, premium, if
any, or interest on or other obligations with respect to, the Notes before all
Senior Indebtedness is paid in full in cash or Cash Equivalents, then and in
such event such payment or distribution (excluding Permitted Junior Notes) shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full in cash or Cash Equivalents or in any other manner, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company with
or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5.
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SECTION 10.03. Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 10.02 shall be applicable, upon the occurrence of a
Payment Default, no payment or distribution of any assets of the Company of any
kind or character (excluding Permitted Junior Notes) shall be made by or on
behalf of the Company on account of principal of, premium, if any, or interest
on or other obligations to the holders of the Notes in respect of the Notes or
on account of the purchase, redemption or other acquisition of any Notes (other
than payments previously made pursuant to Article 8) unless and until such
Payment Default shall have been cured or waived or shall have ceased to exist or
such Senior Indebtedness as to which such Payment Default relates shall have
been discharged or paid in full in cash or Cash Equivalents, after which,
subject to Section 10.02 (if applicable), the Company shall resume making any
and all required payments in respect of the Notes, including any missed
payments.
(b) Unless Section 10.02 shall be applicable, upon the occurrence of a
Non-payment Default and upon the earlier to occur of (1) receipt by the Trustee
from a Senior Representative of written notice of such occurrence stating that
such notice is a Payment Blockage notice ("Payment Blockage Notice") pursuant to
Section 10.03(b) of this Indenture, or (2) if such Non-payment Default results
from acceleration of the Notes, the date of such acceleration, no direct or
indirect payment or distribution of any assets of the Company of any kind or
character (excluding Permitted Junior Notes and other than payments previously
made pursuant to Article 8) shall be made by or on behalf of the Company on
account of principal of, premium, if any, or interest on or other obligations
with respect to the Notes or on account of the purchase, redemption or other
acquisition of Notes for a period ("Payment Blockage Period") commencing upon
receipt by the Trustee of such notice or the date of acceleration referred to in
clause (2) above, as the case may be, unless and until the earliest to occur of
the following events: (w) 179 days shall have elapsed since receipt of such
written notice by the Trustee or the date of such acceleration (provided such
Designated Senior Indebtedness shall not theretofore have been accelerated), (x)
such Non-payment Default shall have been cured or waived or shall have ceased to
exist, (y) such Designated Senior Indebtedness shall have been discharged or
paid in full in cash or Cash Equivalents or (z) such Payment Blockage Period
shall have been terminated by written notice to the Company or the Trustee from
the Senior Representative initiating such Payment Blockage Period, after which,
in each case, the Company shall resume making any and all required payments in
respect of the Notes, including any missed payments. Notwithstanding anything in
the foregoing to the contrary, a Payment Blockage Notice may only be given and
therefore shall only be effective in respect of the Company and the Trustee if
given by, (i) the Bank Agent as long as any Senior Indebtedness remains
outstanding under the Bank
90
Credit Agreement and (ii) if no Senior Indebtedness remains outstanding under
the Bank Credit Agreement, any other representative of outstanding Designated
Senior Indebtedness. Only one Payment Blockage Period with respect to the Notes
may be commenced within any consecutive 365-day period. No Non-payment Default
with respect to Designated Senior Indebtedness which existed or was continuing
on the date of the commencement of any Payment Blockage Period shall be, or be
made, the basis for the commencement of a second Payment Blockage Period,
whether or not within a period of 365 consecutive days, unless such default
shall have been cured or waived for a period of not less than 180 consecutive
days. In no event shall a Payment Blockage Period extend beyond 179 days from
the receipt by the Trustee of the notice referred to in clause (1) of this
Section 10.03(b) or the date of the acceleration referred to in clause (2) of
this Section 10.03(b) and there must be a 186 consecutive day period in any 365
consecutive day period during which no Payment Blockage Period is in effect.
(c) In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Note shall have received any payment prohibited by the foregoing
provisions of this Section 10.03, then and in such event such payment shall be
paid over and delivered forthwith to the Senior Representatives or as a court of
competent jurisdiction shall direct for application to the payment of any due
and unpaid Senior Indebtedness, to the extent necessary to pay all such due and
unpaid Senior Indebtedness in cash or Cash Equivalents, after giving effect to
any concurrent payment to or for the holders of Senior Indebtedness.
SECTION 10.04. Trustee's Relation to Senior Indebtedness.
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 10, 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 and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall, in good faith,
mistakenly pay over or deliver to Holders, the Company or any other person
moneys or assets to which any holder of Senior Indebtedness shall be entitled by
virtue of this Article 10 or otherwise (although such mistaken payment shall not
otherwise affect the subordination provisions of this Article 10).
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SECTION 10.05. Subrogation to Rights of Holders of Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness in cash or Cash
Equivalents, the Holders of the Notes shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Notes shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article 10 to
the holders of Senior Indebtedness by Holders of the Notes or the Trustee shall,
as among the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article 10 shall have been applied,
pursuant to the provisions of this Article 10, to the payment of all amounts
payable under the Senior Indebtedness of the Company, then and in such case the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in full
in cash or Cash Equivalents.
SECTION 10.06. Provisions Solely to Define Relative Rights.
The provisions of this Article 10 are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article 10 or elsewhere in this Indenture or in the Notes is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Notes, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Notes the
principal of, premium, if any, and interest on the Notes as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Notes and creditors of
the Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Note from exercising all remedies otherwise
permitted by applicable law upon a Default or an Event of Default under this
Indenture, subject to the rights, if any, under this Article 10 of the holders
of Senior Indebtedness (1) in any case,
92
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 10.02, to receive, pursuant to and in accordance
with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 10.03, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 10.03(c).
The failure to make a payment on account of principal of, premium, if
any, or interest on the Notes by reason of any provision of this Article 10
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
SECTION 10.07. Trustee to Effectuate Subordination.
Each Holder of a Note by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article 10 and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time to
file such a claim, the holders of Senior Indebtedness, or any Senior
Representative, may file such a claim on behalf of Holders of the Notes.
SECTION 10.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided 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
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of Section 10.08(a), 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 Notes, without incurring
responsibility to the Holders of the Notes and without impairing or releasing
the subordination provided in this Article 10 or the obligations hereunder of
the
93
Holders of the Notes to the holders of Senior Indebtedness, do any one or
more of the following: (1) 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; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other person; provided, however, that in no event shall any such
actions limit the right of the Holders of the Notes to take any action to
accelerate the maturity of the Notes pursuant to Article 6 hereof or to pursue
any rights or remedies hereunder or under applicable laws if the taking of such
action does not otherwise violate the terms of this Indenture.
SECTION 10.09. Notice to Trustee.
(a) 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 Notes. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company or
a holder of Senior Indebtedness or from any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of this Section 10.09, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 10.09 at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose under this Indenture (including,
without limitation, the payment of the principal of, premium, if any, or
interest on any Note), then, anything herein contained to the contrary
notwithstanding but without limiting the rights and remedies of the holders of
Senior Indebtedness or any trustee, fiduciary or agent thereof, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within three Business
Days prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition preventing
any such payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) Subject to the provisions of Section 7.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee and
the
94
Company by a person representing himself to be a holder of Senior Indebtedness
(or a trustee, fiduciary or agent therefor) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor). In the event that the Trustee determines in good faith that further
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 10, 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 10, 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 10.10. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee, subject to the provisions of Section 7.01, and the
Holders, shall be entitled to rely upon any order or decree entered by any court
of competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding-up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of 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.
SECTION 10.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 10 with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article 10 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.08.
SECTION 10.12. Article Applicable to Paying Agents.
95
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article 10 in addition to or in place of the Trustee; provided,
however, that Section 10.11 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 10.13. No Suspension of Remedies.
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article 10 of
the holders, from time to time, of Senior Indebtedness.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939.
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 or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 11.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
addressed as follows:
If to the Company to:
Rose Hills Acquisition Corp.
96
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
With copies to:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxx Group International, Inc.
00 Xxxxx Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
If to the Trustee to:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Corporate Trust Administration
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, 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 by
first class mail to such Holder at the address of such Holder as it appears on
the Notes register maintained by the Registrar and shall be sufficiently given
to such Holder if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
obligors, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, such obligor shall furnish to the Trustee:
98
(a) an Officers' Certificate in form and substance reasonably
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
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05. 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:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinions contained in such certificate
or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.07. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Notes without regard to principles of conflicts of law. The Trustee, the Company
and the Holders agree to submit to the jurisdiction of the courts of the State
of New York in any action or proceeding arising out of or relating to this
Indenture or the Notes.
99
SECTION 11.08. No Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.09. No Recourse Against Others.
A director, officer, employee, stockholder or Affiliate, as such, of the
Company shall not have any liability for any obligations of the Company under
the Notes or this Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability.
SECTION 11.10. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 11.11. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all such executed copies together represent the
same agreement.
SECTION 11.12. Separability.
In case any provision in this Indenture or the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby, and a
Holder shall have no claim therefor against any party hereto.
SECTION 11.13. Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
100
SECTION 11.14. Benefits of Indenture.
Except as provided in Article 10, nothing in this Indenture or in the
Notes, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder, and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ROSE HILLS ACQUISITION CORP.
By: /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: Director
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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EXHIBIT A
THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
GLOBAL NOTE IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS GLOBAL NOTE RESELL OR OTHERWISE
TRANSFER THIS GLOBAL NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS GLOBAL NOTE (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT UPON FURNISHING THE TRUSTEE A LETTER SIGNED BY THE TRANSFEROR
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS GLOBAL NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE),
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS GLOBAL NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS GLOBAL NOTE
WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE HEREOF, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
A-1
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES
ACT.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.09 AND 2.11 OF THE
INDENTURE.
ROSE HILLS ACQUISITION CORP.
9 1/2% SENIOR SUBORDINATED NOTE DUE 2004
No. ______ $[ ]
CUSIP No. ________
Rose Hills Acquisition Corp. (to be renamed Rose Hills Company), a
corporation incorporated under the laws of the State of Delaware (herein called
the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [ ], or
registered assigns, the principal sum of [ ] on November 15, 2004, at the office
or agency of the Company referred to below,
A-2
and to pay interest thereon on May 15 and November 15, in each year, commencing
on May 15, 1997, accruing from the most recent Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been paid,
from the original date of issuance, at the rate of 9 1/2% per annum (subject to
adjustment as hereinafter provided), until the principal hereof is paid or duly
provided for. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Global Note (or one or
more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be May 1 or November 1 (whether or
not a Business Day), as the case may be, immediately preceding such Interest
Payment Date (each a "Regular Record Date"). Any such interest not so punctually
paid, or duly provided for, and interest on such defaulted interest at the rate
borne by the Global Note, to the extent lawful, shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the person
in whose name this Global Note (or one or more Predecessor Notes) is registered
at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company in a manner satisfactory to the
Trustee, which date in any event shall be at least five Business Days prior to
the payment date and notice of which shall be given to the Holder of this Global
Note not less than 15 days prior to such special record date, or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which this Global Note may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in such
Indenture.
The Holder of this Global Note is entitled to the benefits of a Registration
Rights Agreement, dated as of November 15, 1996, between the Company and the
Initial Purchaser named therein (the "Registration Rights Agreement"). The
Registration Rights Agreement contains provisions permitting an increase in the
interest rate borne by this Global Note in the event of the failure to file or
to have declared effective an Exchange Offer Registration Statement or Shelf
Registration Statement (as such terms are defined in the Registration Rights
Agreement), or to consummate an Exchange Offer within prescribed time periods
specified in such Registration Rights Agreement.
Payment of the principal of, premium, if any, and interest on this Global
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal
A-3
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the Note
register maintained by the Registrar.
Reference is hereby made to the further provisions of this Global Note
set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Global Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its duly authorized officer.
Dated: , 199 Rose Hills Acquisition Corp.
By: ___________________________
Name:
Title:
[SEAL]
Attest:
_____________________
Authorized Signature
A-5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned Indenture.
United States Trust Company of New York,
as Trustee
By: _______________________________________
Authorized Signatory
A-6
(Reverse of Global Note)
1. Indenture. This Global Note is one of a duly authorized issue of
Notes of the Company designated as its 9 1/2% Senior Subordinated Notes due
2004, limited (except as otherwise provided in the Indenture referred to below)
in aggregate principal amount to $80,000,000 (the "Notes"), which may be issued
under an indenture (herein called the "Indenture") dated as of November 15, 1996
between Rose Hills Acquisition Corp., a Delaware corporation, as issuer (the
"Company"), and United States Trust Company of New York, a New York corporation,
as trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee, and the Holder of the Global Note and of the terms upon
which this Global Note is, and is to be, authenticated and delivered.
All capitalized terms used in this Global Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Global Note at the times, place and rate, and in the coin
or currency, herein prescribed.
2. Subordination. The Indebtedness evidenced by this Global Note is,
to the extent and in the manner provided in the Indenture, subordinate and
subject in right of payment to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness (including in the case of Designated
Senior Indebtedness, any interest accruing subsequent to the filing of a
petition for bankruptcy of the Company at the rate provided for in the
documentation governing such Designated Senior Indebtedness of the Company,
whether or not such interest is an allowed claim under applicable law) as
defined in the Indenture, and this Global Note is issued subject to such
provisions. The Holder of this Global Note, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee,
on behalf of such Holder, to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Global Note shall cease to be so
subordinate and subject in right of payment upon any defeasance of this Global
Note referred to in Paragraph 6 below.
A-7
3. Redemption.
(a) Optional Redemption. This Global Note will be redeemable at the
option of the Company, in whole or in part, in principal amounts of $1,000 or
any integral multiple of $1,000, at any time on or after November 15, 2000, on
not less than 30 nor more than 60 days' prior notice at the Redemption Prices
(expressed as percentages of the principal amount) set forth below, plus accrued
and unpaid interest, if any, to the Redemption Date, if redeemed during the
12-month period beginning on or after November 15 of the years indicated below:
Redemption
Year Price
---- -----------
2000. . . . . . . . . . . . . . . . . 104.750%
2001. . . . . . . . . . . . . . . . . 103.167%
2002. . . . . . . . . . . . . . . . . 101.583%
2003 and thereafter. . . . . . . . . 100.000%
(b) Special Redemption. The Notes may be redeemed at the option of the
Company, in whole but not in part, at any time prior to February 28, 1997 at
101% of the principal amount thereof, plus accrued interest to the date of
redemption, if, in the sole judgment of the Company, the Acquisition Transaction
will not be consummated by February 21, 1997. In addition, such special
redemption shall mandatorily occur on February 28, 1997 if the Acquisition
Transaction has not been consummated by February 21, 1997.
(c) Interest Payments. In the case of any redemption of this Note,
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holder of this Global Note, or one or more
Predecessor Notes, of record at the close of business on the relevant Record
Date referred to on the face hereof. This Global Note (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this Note in
part only, a new Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
4. Offers to Purchase. Sections 4.12 and 4.13 of the Indenture provide
that upon the occurrence of a Change of Control and following certain Asset
Sales, and subject to further limitations contained therein, the Company shall
make an offer to purchase certain amounts of this Global Note in accordance with
the procedures set forth in the Indenture.
A-8
5. Defaults and Remedies. If an Event of Default shall occur and be
continuing, the principal of all of the outstanding Notes, plus all accrued and
unpaid interest, if any, to and including the date the Notes are paid, may be
declared or may become due and payable in the manner and with the effect
provided in the Indenture.
6. Defeasance. The Indenture contains provisions (which provisions
apply to this Global Note) for defeasance at any time of (a) the entire
indebtedness of the Company under this Global Note and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Global Note and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Global Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Global Note and of any Global Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Global Note.
8. Denominations, Transfer and Exchange. The Notes are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Global Note is registrable on the Note
register of the Company, upon surrender of this Global Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
A-9
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment
of this Global Note for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose name this
Global Note is registered as the owner hereof for all purposes, whether or not
this Global Note shall be overdue, and neither the Company, the Trustee nor any
agent shall be affected by notice to the contrary.
10. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles.
A-10
Schedule A
Exchange of (a) portions of this Global Note for
Physical Notes or (b) Physical Notes
for an interest in this Global Note.
Principal Amount of
Physical Notes
Issued in Exchange
for, or Exchanged for Remaining Principal
an Interest in, the Amount of Notation
Date Global Note this Global Note Made By
---- --------------------- -------------------- --------
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
____________ _________________ _______________ _______
X-00
XXXXXXX X
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT UPON FURNISHING THE TRUSTEE A LETTER
SIGNED BY THE TRANSFEROR CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE HEREOF, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
B-1
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
ROSE HILLS ACQUISITION CORP.
[ ]% SENIOR SUBORDINATED NOTE DUE 2004
No. ______
$[ ]
CUSIP No. ________
Rose Hills Acquisition Corp. (to be renamed Rose Hills Company), a
corporation incorporated under the laws of the State of Delaware (herein called
the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [ ], or
its registered assigns the principal sum of [ ] on November 15, 2004, at the
office or agency of the Company referred to below, and to pay interest thereon
on May 15 and November 15, in each year, commencing on May 15, 1997, accruing
from the most recent Interest Payment Date to which interest has been paid or
duly provided for or, if no interest has been paid, from the original date of
issuance, at the rate of 9 1/2% per annum (subject to adjustment as hereinafter
provided), until the principal hereof is paid or duly provided for. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be May 1 or November 1 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date (each a "Regular Record Date"). Any such interest not so punctually paid,
or duly provided for, and interest on such defaulted interest at the rate borne
by the Note, to the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on a special
B-2
record date for the payment of such defaulted interest to be fixed by the
Company in a manner satisfactory to the Trustee, which date in any event shall
be at least five Business Days prior to the payment date and notice of which
shall be given to the Holders of the Notes not less than 15 days prior to such
special record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
The Holder of this Note is entitled to the benefits of a Registration
Rights Agreement, dated as of November 15, 1996, between the Company and the
Initial Purchaser named therein (the "Registration Rights Agreement"). The
Registration Rights Agreement contains provisions permitting an increase in the
interest rate borne by this Note in the event of the failure to file or to have
declared effective an Exchange Offer Registration Statement or Shelf
Registration Statement (as such terms are defined in the Registration Rights
Agreement), or to consummate an Exchange Offer within prescribed time periods
specified in such Registration Rights Agreement.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear on the
Note register maintained by the Registrar.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Note shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its duly authorized officer.
Dated: , 199 Rose Hills Acquisition Corp.
By: ________________________________
Name:
Title:
[SEAL]
Attest:
_______________________
Authorized Signature
B-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned Indenture.
United States Trust Company of New York,
as Trustee
By: ______________________________________
Authorized Signatory
B-5
(Reverse of Note)
1. Indenture. This Note is one of a duly authorized issue of Notes of
the Company designated as its 9 1/2% Senior Subordinated Notes due 2004, limited
(except as otherwise provided in the Indenture referred to below) in aggregate
principal amount to $80,000,000 (the "Notes"), which may be issued under an
indenture (herein called the "Indenture") dated as of November 15, 1996 between
Rose Hills Acquisition Corp., a Delaware corporation, as issuer (the "Company"),
and United States Trust Company of New York, a New York corporation, as trustee
(herein called the "Trustee," which term includes any successor Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee, and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
2. Subordination. The Indebtedness evidenced by this Note is, to the
extent and in the manner provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full in cash or Cash Equivalents of all
Senior Indebtedness (including in the case of Designated Senior Indebtedness,
any interest accruing subsequent to the filing of a petition for bankruptcy of
the Company at the rate provided for in the documentation governing such
Designated Senior Indebtedness of the Company, whether or not such interest is
an allowed claim under applicable law) as defined in the Indenture, and this
Note is issued subject to such provisions. The Holder of this Note, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose; provided, however, that the Indebtedness evidenced by this Note shall
cease to be so subordinate and subject in right of payment upon any defeasance
of the Notes referred to in Paragraph 6 below.
B-6
3. Redemption.
(a) Optional Redemption. The Notes will be redeemable at the option of
the Company, in whole or in part, in principal amounts of $1,000 or any integral
multiple of $1,000, at any time on or after 2000, on not less than 30 nor more
than 60 days' prior notice at the Redemption Prices (expressed as percentages of
the principal amount) set forth below, plus accrued and unpaid interest, if any,
to the Redemption Date, if redeemed during the 12-month period beginning on or
after November 15 of the years indicated below:
Redemption
Year Price
---- -----------
2000. . . . . . . . . . . . . . . . . 104.750%
2001. . . . . . . . . . . . . . . . . 103.167%
2002. . . . . . . . . . . . . . . . . 101.583%
2003 and thereafter . . . . . . . . . 100.000%
(b) Special Redemption. The Notes may be redeemed at the option of the
Company, in whole but not in part, at any time prior to February 28, 1997 at
101% of the principal amount thereof, plus accrued interest to the date of
redemption, if, in the sole judgment of the Company, the Acquisition Transaction
will not be consummated by February 21, 1997. In addition, such special
redemption shall mandatorily occur on February 28, 1997 if the Acquisition
Transaction has not been consummated by February 21, 1997.
(c) Interest Payments. In the case of any redemption of this Note,
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holder of this Note, or one or more Predecessor
Notes, of record at the close of business on the relevant Record Date referred
to on the face hereof. This Note (or portions thereof) for whose redemption and
payment provision is made in accordance with the Indenture shall cease to bear
interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this Note in
part only, a new Note or Notes for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.
4. Offers to Purchase. Sections 4.12 and 4.13 of the Indenture provide
that upon the occurrence of a Change of Control and following certain Asset
Sales, and subject to further limitations contained therein, the Company shall
make an offer to purchase certain amounts of Notes in accordance with the
procedures set forth in the Indenture.
B-7
5. Defaults and Remedies. If an Event of Default shall occur and be
continuing, the principal of all of the outstanding Notes, plus all accrued and
unpaid interest, if any, to and including the date the Notes are paid, may be
declared or may become due and payable in the manner and with the effect
provided in the Indenture.
6. Defeasance. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company under this Note and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Company with
certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Note and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
8. Denominations, Transfer and Exchange. The Notes are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the Note register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for such purpose in the Borough of Manhattan
in The City of New York or at such other office or agency of the Company as may
be maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for the
same
B-8
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment
of this Note for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the person in whose name this Note
is registered as the owner hereof for all purposes, whether or not this Note
shall be overdue, and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
10. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles.
B-9
EXHIBIT C
[To be inserted at end of Exhibits A and B]
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.12 or 4.13 of the Indenture, check the appropriate box:
Section 4.12 / /
Section 4.13 / /
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.12 or 4.13 of the Indenture, state the amount:
$______
Date:__________ Your Signature: ______________________
(Sign exactly as your name
appears on the other
side of this Note)
Signature Guarantee: ___________________
C-1
[To be inserted at end of Exhibits A and B]
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________________________________________________
_________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
___________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
____________________________________________________________________________
attorney to transfer said Note on the books of the Issuer with full power of
substitution in the premises.
[To be inserted at end of Exhibits A and B for Initial Notes only]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of an effective registration or (ii) three
years after the later of the original issuance of this Note or the last date on
which this Note was held by an Affiliate of the Issuer, the undersigned confirms
that without utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
C-2
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 of the Indenture shall have
been satisfied.
Dated: _____________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional Buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ______________________ ____________________________________
NOTICE: To be executed by an
executive officer
C-3
