EXHIBIT 4.7
INDENTURE
Dated as of February 2, 1998
Among
XXXXXX PACKAGING HOLDINGS COMPANY
and
GPC CAPITAL CORP. II, as Issuers,,
and
THE BANK OF NEW YORK, as Trustee
---------------
$169,000,000 Principal Amount at Maturity
10-3/4% Senior Discount Notes due 2009, Series A
10-3/4% Senior Discount Notes due 2009, Series B
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................... 1
SECTION 1.1 Definitions ................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act ........... 22
SECTION 1.03. Rules of Construction ....................................... 23
ARTICLE II
THE SECURITIES .......................... 23
SECTION 2.1 Form and Dating .............................................. 23
SECTION 2.2 Execution and Authentication ................................. 23
SECTION 2.3 Registrar and Paying Agent ................................... 24
SECTION 2.4 Agent To Hold Assets in Trust ................................ 25
SECTION 2.5 Lists ........................................................ 25
SECTION 2.6 Transfer and Exchange ........................................ 25
SECTION 2.7 Securities ................................................... 26
SECTION 2.8 Securities ................................................... 26
SECTION 2.9 Securities .................................................... 26
SECTION 2.10 Securities .................................................. 27
SECTION 2.11 Cancellation ................................................ 27
SECTION 2.12 Defaulted Interest .......................................... 27
SECTION 2.13 CUSIP Number ................................................ 28
SECTION 2.14 Deposit of Moneys ........................................... 28
SECTION 2.15 Book-Entry Provisions for Global Securities ................. 28
SECTION 2.16 Registration of Transfers and Exchanges ..................... 29
ARTICLE III
REDEMPTION .............................. 33
SECTION 3.1 Notices to Trustee ........................................... 33
SECTION 3.2 Selection of Securities To Be Redeemed ....................... 34
SECTION 3.3 Notice of Redemption ......................................... 34
SECTION 3.4 Effect of Notice of Redemption ............................... 35
SECTION 3.5 Deposit of Redemption Price ................................... 35
SECTION 3.6 Securities Redeemed in Part ................................... 35
ARTICLE IV
COVENANTS .............................. 35
E-i
SECTION 4.1 Payment of Securities ......................................... 35
SECTION 4.2 Maintenance of Office or Agency ............................... 36
SECTION 4.3 Limitations on Transactions with Affiliates ................... 36
SECTION 4.4 Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock ....................................... 37
SECTION 4.5 Limitation on Asset Sales ..................................... 40
SECTION 4.6 Limitation on Restricted Payments ............................. 41
SECTION 4.7 Existence ..................................................... 45
SECTION 4.8 Payment of Taxes and Other Claims ............................. 45
SECTION 4.9 Notice of Defaults ............................................ 45
SECTION 4.10 Maintenance of Properties and Insurance ...................... 45
SECTION 4.11 Compliance Certificate ....................................... 46
SECTION 4.12 Reports to Holders ........................................... 46
SECTION 4.13 Waiver of Stay, Extension or Usury Laws ...................... 47
SECTION 4.14 Change of Control ............................................ 47
SECTION 4.15 [Intentionally Omitted] ..................................... 49
SECTION 4.16 Limitations on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries ........................ 49
SECTION 4.17 [Intentionally Omitted] ...................................... 50
SECTION 4.18 Limitation on Liens .......................................... 50
SECTION 4.19 Limitations on Guarantees of Indebtedness by
Restricted Subsidiaries .................................. 50
SECTION 4.20 Calculation of Original Issue Discount ....................... 51
ARTICLE V
MERGERS; SUCCESSORS ...................... 51
SECTION 5.1 Mergers, Sale of Assets, etc .................................. 51
SECTION 5.2 Successor Substituted ......................................... 52
ARTICLE VI
DEFAULT AND REMEDIES ..................... 53
SECTION 6.1 Events of Default ............................................. 53
SECTION 6.2 Acceleration .................................................. 54
SECTION 6.3 Other Remedies ................................................ 55
SECTION 6.4 Waiver of Past Default ........................................ 55
SECTION 6.5 Control by Majority ........................................... 56
SECTION 6.6 Limitation on Suits ........................................... 56
SECTION 6.7 Rights of Holders To Receive Payment .......................... 57
SECTION 6.8 Collection Suit by Trustee .................................... 57
SECTION 6.09. Trustee May File Proofs of Claim ............................ 57
SECTION 6.9 Priorities .................................................... 58
SECTION 6.10 Undertaking for Costs ........................................ 58
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ARTICLE VII
TRUSTEE .............................. 58
SECTION 7.1 Duties of Trustee ........................................... 58
SECTION 7.2 Rights of Trustee ........................................... 59
SECTION 7.3 Individual Rights of Trustee ................................ 60
SECTION 7.4 Trustee's Disclaimer ........................................ 61
SECTION 7.5 Notice of Defaults .......................................... 61
SECTION 7.6 Reports by Trustee to Holders ............................... 61
SECTION 7.7 Compensation and Indemnity .................................. 61
SECTION 7.8 Replacement of Trustee ...................................... 62
SECTION 7.9 Successor Trustee by Merger, etc ............................ 63
SECTION 7.10 Eligibility; Disqualification .............................. 63
SECTION 7.11 Preferential Collection of Claims Against Issuers .......... 64
ARTICLE VIII
[INTENTIONALLY OMITTED] ................ 64
ARTICLE IX
DISCHARGE OF INDENTURE ................ 64
SECTION 9.1 Termination of Issuers' Obligations ......................... 64
SECTION 9.2 Application of Trust Money .................................. 65
SECTION 9.3 Repayment to Issuers ........................................ 66
SECTION 9.4 Reinstatement ............................................... 66
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS ...... 66
SECTION 10.1 Without Consent of Holders ................................. 66
SECTION 10.2 With Consent of Holders .................................... 67
SECTION 10.3 Compliance with Trust Indenture Act ........................ 69
SECTION 10.4 Revocation and Effect of Consents .......................... 69
SECTION 10.5 Notation on or Exchange of Securities ...................... 69
SECTION 10.6 Trustee To Sign Amendments, etc ............................ 69
ARTICLE XI
GUARANTEE ............................. 70
SECTION 11.1 Unconditional Guarantee .................................... 70
SECTION 11.2 Severability ............................................... 71
SECTION 11.3 Limitation of Guarantor's Liability ........................ 71
SECTION 11.4 Contribution ............................................... 71
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SECTION 11.5 Execution of Guarantee ..................................... 71
SECTION 11.6 Subordination of Subrogation and Other Rights ............. 72
ARTICLE XII
[INTENTIONALLY OMITTED] ................ 72
ARTICLE XIII
MISCELLANEOUS ......................... 72
SECTION 13.1 Trust Indenture Act Controls ............................... 72
SECTION 13.2 Notices ................................................... 72
SECTION 13.3 Communications by Holders with Other Holders .............. 74
SECTION 13.4 Certificate and Opinion as to Conditions Precedent ........ 74
SECTION 13.5 Statements Required in Certificate or Opinion .............. 74
SECTION 13.6 Rules by Trustee, Paying Agent, Registrar ................. 74
SECTION 13.7 Governing Law ............................................. 75
SECTION 13.8 No Recourse Against Others ................................ 75
SECTION 13.9 Successors ................................................ 75
SECTION 13.10 Counterpart Originals ..................................... 75
SECTION 13.11 Severability .............................................. 75
SECTION 13.12 No Adverse Interpretation of Other Agreements ............. 75
SECTION 13.13 Legal Holidays ........................................... 76
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INDENTURE dated as of February 2, 1998, among XXXXXX PACKAGING HOLDINGS
COMPANY, a Pennsylvania limited partnership (the "Company"), GPC CAPITAL CORP.
II, a Delaware corporation ("CapCo II"), as Issuers, and THE BANK OF NEW YORK, a
New York banking 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 Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Accreted Value" means as of any date prior to January 15, 2003, an amount
per $1,000 principal amount at maturity of the Securities that is equal to the
sum of (a) $595.34 and (b) the portion of the excess of the principal amount at
maturity of each Security over $595.34 which shall have been amortized through
such date, such amount to be so amortized on a daily basis and compounded
semi-annually on each January 15 and July 15 at the rate of 10 3/4% per annum
from the Issue Date through the date of determination computed on the basis of a
360-day year of twelve 30-day months.
"Acquired Indebtedness" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Additional Interest" has the meaning provided in the Registration Rights
Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Affiliate Transaction" see Section 4.03.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means (i) the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions) of
property or assets (including by way of a sale and leaseback) of the Company or
any Restricted Subsidiary thereof (each referred to in
2
this definition as a "disposition") or (ii) the issuance or sale of Equity
Interests of any Restricted Subsidiary (whether in a single transaction or a
series of related transactions), in each case, other than: (a) a disposition of
Cash Equivalents or Investment Grade Securities or obsolete or worn out
equipment in the ordinary course of business; (b) the disposition of all or
substantially all of the assets of the Company in a manner permitted pursuant to
Section 5.01 of this Indenture or any disposition that constitutes a Change of
Control pursuant to this Indenture; (c) any Restricted Payment that is permitted
to be made, and is made, under Section 4.06 of this Indenture; (d) any
disposition of assets with an aggregate fair market value of less than $2.0
million; (e) any disposition of property or assets by a Restricted Subsidiary to
the Company or by the Company or a Restricted Subsidiary to a Restricted
Subsidiary or by the Company to CapCo II in connection with an IPO
Reorganization; (f) any exchange of like property pursuant to Section 1031 of
the Internal Revenue Code of 1986, as amended, for use in a Similar Business or
by the Company to CapCo II in connection with an IPO Reorganization; (g) any
financing transaction with respect to property built or acquired by the Company
or any of its Restricted Subsidiaries after the Issue Date including, without
limitation, sale-leasebacks and asset securitizations; (h) foreclosures on
assets; (i) any sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary; and (j) an issuance of Equity Interests by CapCo
II in connection with an IPO Reorganization.
"Bankruptcy Law" see Section 6.01.
"Blackstone" means Blackstone Capital Partners III Merchant Banking Fund
L.P. and its Affiliates.
"Board of Directors" means, as to any Person, the board of directors of
such Person (or, if such Person is a partnership, the board of directors or
other governing body of the general partner (or, if there is more than one
general partner, the general partner or general partners of such Person which
may take the applicable action pursuant to the partnership agreement of such
Person) of such Person) or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
or the general partner, in the case of a limited partnership, or member, in the
case of a limited liability company, of such Person (or, if such Person is a
partnership, one of its general partners) to have been duly adopted by the Board
of Directors of such Person or the general partner, in the case of a limited
partnership, or member, in the case of a limited liability company, of such
Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means a day that is not a Saturday, a Sunday or a day on
which banking institutions in New York, New York are not required to be open.
"CapCo II" means the Person named as "CapCo II" in the first paragraph of
this Indenture and its successors; provided that any such successor shall be a
corporation organized and existing under the laws of the United States or any
state thereof.
3
"Capitalized Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized and reflected as a liability on
a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership of limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) U. S. dollars (and foreign currency exchanged
into U.S. dollars within 180 days), (ii) securities issued or directly and fully
guaranteed or insured by the U.S. Government or any agency or instrumentality
thereof, (iii) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any commercial bank having capital and surplus in
excess of $500.0 million, (iv) repurchase obligations for underlying securities
of the types described in clauses (ii) and (iii) entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper rated A-1 or the equivalent thereof by Xxxxx'x or S&P and in
each case maturing within one year after the date of acquisition, (vi)
investment funds investing 95% of their assets in securities of the types
described in clauses (i)-(v) above, (vii) readily marketable direct obligations
issued by any state of the United States of America or any political subdivision
thereof having one of the two highest rating categories obtainable from either
Xxxxx'x or S&P and (viii) Indebtedness or preferred stock issued by Persons with
a rating of "A" or higher from S&P or "A2" or higher from Xxxxx'x.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, to a Person other than the Permitted Holders and their Related
Parties, except insofar as such transaction or transactions relate to an IPO
Reorganization in accordance with Article Five hereof; or (ii) the Company
becomes aware (by way of a report or any other filing pursuant to Section 13(d)
of the Exchange Act, proxy, vote, written notice or otherwise) of the
acquisition by any Person or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, or any successor provision), including any
group acting for the purpose of acquiring, holding or disposing of securities
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the
Permitted Holders and their Related Parties, in a single transaction or in a
related series of transactions, by way of merger, consolidation or other
business combination or purchase, of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of
the total voting power of the Voting Stock of the Company.
"Change of Control Date" see Section 4.14.
4
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of, such Person's common equity, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common equity.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor and shall include, in any event, CapCo II following any IPO
Reorganization.
"Company Issuers" means Xxxxxx Packaging Company and GPC Capital Corp.
"Consolidated Depreciation and Amortization Expense" means with respect to
any Person for any period, the total amount of depreciation and amortization
expense of such Person and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus (a) provision for
taxes based on income or profits of such Person, or Permitted Tax Distributions
made by such Person, for such period deducted in computing Consolidated Net
Income, plus (b) Consolidated Interest Expense of such Person for such period to
the extent the same was deducted in calculating such Consolidated Net Income,
plus (c) Consolidated Depreciation and Amortization Expense of such Person for
such period to the extent such depreciation and amortization expense was
deducted in computing Consolidated Net Income, plus (d) any fees, expenses or
charges related to any Equity Offering, Permitted Investment, acquisition or
recapitalization or Indebtedness permitted to be incurred by this Indenture
(whether or not successful) and fees, expenses or charges related to the
transactions contemplated by the Recapitalization Agreement (including fees to
Blackstone), plus (e) the amount of any non-recurring charges (including any
one-time costs incurred in connection with acquisitions after the Issue Date)
deducted in such period in computing Consolidated Net Income, plus (f) without
duplication, any other non-cash charges reducing Consolidated Net Income for
such period (excluding any such charge which requires an accrual of a cash
reserve for anticipated cash charges for any future period), plus (g) the amount
of any minority interest expense deducted in calculating Consolidated Net
Income, plus (h) special charges and unusual items during any period ending on
or prior to the second anniversary of the Issue Date not to exceed $15.0 million
in the aggregate, plus (i) the amount of management, consulting monitoring and
advisory fees paid to Blackstone and its Affiliates during such period not to
exceed $1.0 million during any four quarter period, less, without duplication
(j) non-cash items increasing Consolidated Net Income of such Person for such
period (excluding any items which represent the reversal of any accrual of, or
cash reserve for, anticipated cash charges in any prior period).
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum, without duplication, of: (a) consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, to the extent such
expense was deducted in computing Consolidated Net Income (including
amortization of original issue discount, the interest
5
component of Capitalized Lease Obligations and net payments and receipts (if
any) pursuant to Hedging Obligations to the extent included in Consolidated
Interest Expense and excluding amortization of deferred financing fees) and (b)
consolidated capitalized interest of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued; provided, however, that Consolidated
Interest Expense of the Company shall not include the interest with respect to
the Securities until January 15, 2003.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis; provided, however, that (i) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto) shall be excluded, (ii) any increase in the cost of sales or other
incremental expenses resulting from purchase accounting in relation to any
acquisition, net of taxes, shall be excluded, (iii) the Net Income for such
period shall not include the cumulative effect of a change in accounting
principles during such period, (iv) any net after-tax income (loss) from
discontinued operations and any net after-tax gains or losses on disposal of
discontinued operations shall be excluded, (v) any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business (as determined in good faith by
the Company) shall be excluded, (vi) the Net Income for such period of any
Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included only to the
extent of the amount of dividends or distributions or other payments paid in
cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period, (vii) the Net Income of
any Person acquired in a pooling of interests transaction shall not be included
for any period prior to the date of such acquisition, (viii) the Net Income for
such period of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of its Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been obtained)
or, directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restriction with respect to the payment of dividends or similar
distributions has been legally waived; provided that such Net Income shall not
be so excluded in calculating Consolidated Net Income (a) as a component of
Consolidated EBITDA for purposes of calculating the Fixed Charge Coverage Ratio
in determining whether (I) a Restricted Subsidiary can incur additional
Indebtedness or issue Disqualified Stock or (II) the Company can incur $1.00 of
Indebtedness for purposes of (A) clause (b) of the first paragraph or clauses
(vi) and (x) of the second paragraph of Section 4.06 of this Indenture, (B)
clause (iv) of Section 5.01 of this Indenture or (C) the definition of
"Unrestricted Subsidiary" or (b) for purposes of clause (c) of the first
paragraph of Section 4.06 of this Indenture in determining whether a Restricted
Investment can be made (including the designation of a Subsidiary as an
Unrestricted Subsidiary) and (ix) the Net Income for such period of the Company
and its Restricted Subsidiaries shall be decreased by the amount of Permitted
Tax Distributions during such period.
"Contingent Obligations" means, with respect to any Person, any obligation
of such Person guaranteeing any leases, dividends or other obligations that do
not constitute
6
Indebtedness ("primary obligations") of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or payment of any
such primary obligation or (B) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, or (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
against loss in respect thereof.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may give
notice to the Company.
"Custodian" see Section 6.01.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Defeasance Trust Payment" see Section 8.01.
"Depository" means, with respect to the Securities issued in the form of
one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Noncash Consideration" means the fair market value of noncash
consideration received by the Company or any of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of such Designated Noncash Consideration.
"Designated Preferred Stock" means preferred stock of the Company (other
than Disqualified Stock) that is issued for cash (other than to a Restricted
Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in clause (c) of Section 4.06 of
this Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which, by its terms (or by the terms of any security into which
it is convertible or for which it is putable or exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, in each case prior to the maturity date of the
Securities; provided, however, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Company or any of
its Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may
7
be required to be repurchased by the Company or such Subsidiary in order to
satisfy applicable statutory or regulatory obligations or as a result of such
employee's death or disability.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of common stock or
preferred stock of the Company (other than Disqualified Stock), other than (i)
public offerings with respect to the Common Stock registered on Form S-8 and
(ii) any such public or private sale the proceeds of which have been designated
by the Company as an Excluded Contribution or Permanent Qualified Equity
Contributions.
"Event of Default" see Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Securities" means the 10 3/4% Senior Discount Notes due 2009,
Series B, to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement."
Excluded Contributions" means the net cash proceeds received by the Company
after the Issue Date from (a) contributions to its common equity capital and (b)
the sale (other than to a Subsidiary or to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement of the
Company or any of its Subsidiaries) of Capital Stock (other than Disqualified
Stock) of the Company, in each case designated as Excluded Contributions
pursuant to an Officers' Certificate, the cash proceeds of which are excluded
from the calculation set forth in paragraph (c) of Section 4.06 of this
Indenture."
Expiration Date" has the meaning set forth in the definition of "Offer to
Purchase" below.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"Final Maturity Date" means January 15, 2009.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
period, the ratio of Consolidated EBITDA of such Person for such period to the
Fixed Charges of such Person for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, guarantees or redeems any
Indebtedness (other than in the case of revolving credit borrowings, in which
case interest expense shall be computed based upon the average daily balance of
such Indebtedness during the applicable period) or issues or redeems preferred
stock
8
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the event for which the calculation of
the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter period. With respect to any Calculation
Date that occurs on or after January 15, 2003 and prior to January 15, 2004, the
Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to the
interest expense of the Company with respect to the Securities. For purposes of
making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and discontinued operations (as determined
in accordance with GAAP) that have been made by the Company or any of its
Restricted Subsidiaries during the four-quarter reference period or subsequent
to such reference period and on or prior to or simultaneously with the
Calculation Date shall be calculated on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, discontinued operations, mergers and
consolidations (and the reduction of any associated fixed charge obligations and
the change in Consolidated EBITDA resulting therefrom) had occurred on the first
day of the four-quarter reference period. If since the beginning of such period
any Person (that subsequently became a Restricted Subsidiary or was merged with
or into the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Investment, acquisition, disposition, discontinued
operation, merger or consolidation that would have required adjustment pursuant
to this definition, then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect thereto for such period as if such Investment,
acquisition, disposition, discontinued operation, merger or consolidation had
occurred at the beginning of the applicable four-quarter period. For purposes of
this definition, whenever pro forma effect is to be given to a transaction, the
pro forma calculations shall be made as determined in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP. For purposes of making the computation referred to
above, interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily balance of
such Indebtedness during the applicable period. Interest on Indebtedness that
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 rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Company may designate. Any such pro forma
calculation may include adjustments in the reasonable determination of the
Company as set forth in an Officers' Certificate, to (i) reflect operating
expense reductions reasonably expected to result from any acquisition or merger
or (ii) eliminate the effect of any extraordinary accounting event with respect
to any acquired Person on Consolidated Net Income.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (a) Consolidated Interest Expense of such Person for such period and (b) the
product of (x) all cash
9
dividend payments (excluding items eliminated in consolidation) on any series of
Disqualified Stock of such Person or its Restricted Subsidiaries and (y) (A) if
such Person is not a taxable entity for U.S. federal income tax purposes, one,
or (B) if such Person is an entity taxable for U.S. federal income tax purposes,
a fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local tax rate
of such Person, expressed as a decimal.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof.
"Funding Guarantor" see Section 11.04.
"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 have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date. For the purposes of this
Indenture, the term "consolidated" with respect to any Person shall mean such
Person consolidated with its Restricted Subsidiaries, and shall not include any
Unrestricted Subsidiary.
"Global Securities" means one or more IAI Global Securities, Reg. S Global
Securities and 144A Global Securities.
"Government Securities" means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Government Securities
or a specific payment of principal of or interest on any such Government
Securities held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Securities or the specific payment of principal of or interest on
the Government Securities evidenced by such depository receipt.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
10
"Guarantee" means any guarantee of the obligations of the Issuers under
this Indenture and the Securities by any Restricted Subsidiary in accordance
with the provisions of this Indenture. When used as a verb, "Guarantee" shall
have a corresponding meaning.
"Guarantor" means any Restricted Subsidiary that incurs a Guarantee;
provided that upon the release and discharge of such Restricted Subsidiary from
its Guarantee in accordance with this Indenture, such Restricted Subsidiary
shall cease to be a Guarantor.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange or interest rate swap agreements,
currency exchange or interest rate cap agreements and currency exchange or
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such Person against fluctuations in currency exchange or
interest rates or commodity prices.
"Holder" means the registered holder of any Security.
"IAI Global Security" means a permanent global security in registered form
representing the aggregate principal amount at maturity of Securities sold to
Institutional Accredited Investors.
"IPO Reorganization" means the transfer of all or substantially all of the
Company's assets (including, without limitation, all partnership or other equity
interests in the Operating Company and Opco GP) and liabilities to CapCo II, and
the dissolution, liquidation or winding up of the Company in connection with or
in contemplation of an initial public offering of the shares of common stock of
CapCo II).
"Indebtedness" means, with respect to any Person, (a) any indebtedness of
such Person, whether or not contingent, (i) in respect of borrowed money, (ii)
evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers' acceptances (or, without double counting, reimbursement
agreements in respect thereof), (iii) representing the balance deferred and
unpaid of the purchase price of any property (including Capitalized Lease
Obligations), except any such balance that constitutes a trade payable or
similar obligation to a trade creditor, in each case accrued in the ordinary
course of business or (iv) representing any Hedging Obligations, if and to the
extent of any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) that would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP, (b) to the extent not otherwise included, any obligation by such Person to
be liable for, or to pay, as obligor, guarantor or otherwise, the Indebtedness
of another Person (other than by endorsement of negotiable instruments for
collection in the ordinary course of business) and (c) to the extent not
otherwise included, Indebtedness of another Person secured by a Lien on any
asset owned by such Person (whether or not such Indebtedness is assumed by such
Person); provided, however, that Contingent Obligations incurred in the ordinary
course of business shall be deemed not to constitute Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
11
"Independent Financial Advisor" means an accounting, appraisal, investment
banking firm or consultant to Persons engaged in Similar Businesses of
nationally recognized standing that is, in the good faith determination of the
Company, qualified to perform the task for which it has been engaged.
"Initial Securities" means the 10 3/4% Senior Discount Notes due 2009,
Series A, of the Issuers.
"Initial Purchasers" means BT Alex. Xxxxx Incorporated, Lazard Freres & Co.
LLC and Salomon Brothers Inc.
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
any liquidation, dissolution or winding up of such Person, or any bankruptcy,
reorganization, insolvency, receivership or similar proceeding with respect to
such Person, whether voluntary or involuntary.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, with respect to the Securities, the sum of any cash
interest and any Additional Interest on the Securities.
"Interest Payment Date" means each semiannual interest payment date on
January 15 and July 15 of each year, commencing July 15, 2003.
"Interest Record Date" for the interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the January 1 or
July 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date."
Investment Grade Securities" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents), (ii) debt securities or
debt instruments with a rating of BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such rating by such rating organization, or, if no
rating of S&P or Moody's then exists, the equivalent of such rating by any other
nationally recognized securities rating agency, but excluding any debt
securities or instruments constituting loans or advances between and among the
respective Company Issuers and their respective Subsidiaries, and (iii)
investments in any fund that invests exclusively in investments of the type
described in clauses (i) and (ii) which fund may also hold immaterial amounts of
cash pending investment and/or distribution.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans (including
guarantees), advances or capital contributions (excluding accounts receivable,
trade credit, advances to customers, commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests
12
or other securities issued by any other Person and investments that are required
by GAAP to be classified on the balance sheet (excluding the footnotes thereto)
of such Person in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.06 of this Indenture, (i)
"Investments" shall include the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of the net assets
of a Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary equal to an
amount (if positive) equal to (x) the Company's "Investment" in such Subsidiary
at the time of such redesignation less (y) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of the
net assets of such Subsidiary at the time of such redesignation; and (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined
in good faith by the Company.
"Investor LP" means BMP/Xxxxxx Holdings Corporation, a Delaware
corporation.
"Issue Date" means the closing date for the sale and original issuance of
Securities under this Indenture.
"Issuers" means the Company and CapCo II.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction);
provided that in no event shall an operating lease be deemed to constitute a
Lien.
"Management Group" means the group consisting of the executive officers of
the Company.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any
13
cash received upon the sale or other disposition of any Designated Noncash
Consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale and the sale or disposition of such Designated Noncash
Consideration (including, without limitation, legal, accounting and investment
banking fees, and brokerage and sales commissions), and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements related thereto), amounts required to be applied to the repayment
of principal, premium (if any) and interest on Indebtedness required (other than
required by clause (i) of the second paragraph of Section 4.05 of this
Indenture) to be paid as a result of such transaction and any deduction of
appropriate amounts to be provided by the Company as a reserve in accordance
with GAAP against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.
"New Credit Facility" means that certain credit facility among Bankers
Trust Company, the Company and certain of its Subsidiaries and affiliates and
the lenders from time to time party thereto, together with any related
documents, instruments and agreements executed in connection therewith
(including, without limitation, any guaranty agreements and security documents),
in each case as such credit facility and related documents, instruments and
agreements may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings thereunder or adding
additional obligors or guarantors thereunder) all or any portion of the
Indebtedness under such credit facility or any successor or replacement credit
facility and whether by the same or any other agent, lender or group of lenders.
"Obligations" means all obligations for principal, interest, penalties,
fees, indemnifications, reimbursements (including, without limitation,
reimbursement obligations with respect to letters of credit and banker's
acceptances), damages and other liabilities payable under the documentation
governing any Indebtedness; provided that Obligations with respect to the
Securities shall not include fees or indemnifications in favor of the Trustee
and other third parties other than the holders of the Securities.
"Offer" has the meaning set forth in the definition of "Offer to Purchase"
below.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
behalf of the Issuers by first-class mail, postage prepaid, to each holder at
his address appearing in the register for the Securities on the date of the
Offer offering to purchase up to the principal amount at maturity of Securities
specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the "Expiration Date") of the
Offer to Purchase, which shall be not less than 30 days nor more than 60 days
after the date of such Offer, and a settlement date (the "Purchase Date") for
purchase of Securities to occur no later than three Business Days after the
Expiration Date. The Issuers shall notify the Trustee at least five Business
Days (or such
14
shorter period as is acceptable to the Trustee) prior to the mailing of the
Offer of the Issuers' obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Issuers or, at the Issuers' request, by the Trustee in
the name and at the expense of the Issuers. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender Securities
pursuant to the Offer to Purchase. The Offer shall also state: (1) the Section
of this Indenture pursuant to which the Offer to Purchase is being made; (2) the
Expiration Date and the Purchase Date; (3) the aggregate principal amount at
maturity of the outstanding Securities offered to be purchased by the Issuers
pursuant to the Offer to Purchase (including, if less than 100%, the manner by
which such amount has been determined pursuant to the Section of this Indenture
requiring the Offer to Purchase) (the "Purchase Amount"); (4) the purchase price
to be paid by the Issuers for each $1,000 aggregate principal amount at maturity
of Securities accepted for payment (as specified pursuant to this Indenture)
(the "Purchase Price"); (5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1,000 principal
amount at maturity; (6) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase; (7) that Accreted
Value or interest on any Security not tendered or tendered but not purchased by
the Issuers pursuant to the Offer to Purchase will continue to accrete or
accrue, as the case may be; (8) that on the Purchase Date the Purchase Price
will become due and payable upon each Security being accepted for payment
pursuant to the Offer to Purchase and that Accreted Value thereof or interest
thereon shall cease to accrete or accrue, as the case may be, on and after the
Purchase Date; (9) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Issuers or the
Trustee so require, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing); (10) that
Holders will be entitled to withdraw all or any portion of Securities tendered
if the Issuers (or the Paying Agent) receives, not later than the close of
business on the fifth Business Day next preceding the Expiration Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount at maturity of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement that such
Holder is withdrawing all or a portion of his tender; (11) that (a) if
Securities in an aggregate principal amount less than or equal to the Purchase
Amount are duly tendered and not withdrawn pursuant to the Offer to Purchase,
the Issuers shall purchase all such Securities and (b) if Securities with an
Accreted Value on the Purchase Date in excess of the Purchase Amount are
tendered and not withdrawn pursuant to the Offer to Purchase, the Issuers shall
purchase Securities having an aggregate Accreted Value on the Purchase Date
equal to the Purchase Amount in accordance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if not so listed, on a pro rata basis, by lot or by such other method
as the Trustee shall deem fair and appropriate (with such adjustments as may be
deemed appropriate so that only Securities in denominations of $1,000 principal
amount at maturity or integral multiples thereof shall be purchased); and (12)
that in the case of any Holder whose Security is purchased only in part, the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder, in an aggregate
principal amount at maturity equal to and in exchange
15
for the unpurchased portion of the Security so tendered.An Offer to Purchase
shall be governed by and effected in accordance with the provisions above
pertaining to any Offer.
"Officer" of any Person means the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President (whether or
not such title is preceded or followed by one or more words or phrases), the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary
of such Person.
"Officers' Certificate" of any Person means a certificate signed on behalf
of such Person or the general partner, in the case of a limited partnership, or
member, in the case of a limited liability company, of such Person by the
Chairman of the Board, the President, any Executive Vice President, Senior Vice
President or Vice President (whether or not such title is preceded or followed
by one or more words or phrases) and by the Treasurer or any Assistant Treasurer
or the Secretary or any Assistant Secretary of such Person, that meets the
requirements set forth in Sections 13.04 and 13.05 of this Indenture.
"144A Global Security" means a permanent global security in registered form
representing the aggregate principal amount at maturity of Securities sold in
reliance on Rule 144A.
"Opco GP" means GPC Opco GP LLC, a Delaware limited liability company, and
its successors.
"Operating Company" means Xxxxxx Packaging Company, a Delaware limited
partnership and its successors.
"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 Issuers or the Trustee.
"Pari Passu Indebtedness" means with respect to the Securities or a
Guarantee, Indebtedness which ranks pari passu in right of payment with the
Securities or such Guarantee, as the case may be.
"Participant" has the meaning set forth in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Permanent Qualified Equity Contributions" means net cash proceeds to the
Company in form of contributions to the common equity capital of the Company or
from the sale (other than to a Subsidiary of the Company or to any management
equity plan or stock option plan or any other management or employee benefit
plan of the Company or any of its Subsidiaries) of Capital Stock (other than
Disqualified Stock) of the Company, in each case designated as Permanent
Qualified Equity Contributions pursuant to an Officers' Certificate, the
16
cash proceeds of which are excluded from the calculation set forth in paragraph
(c) of Section 4.06 of this Indenture.
"Permitted Holders" means Blackstone and any of its Affiliates.
"Permitted Investments" means (a) any Investment in the Company or any
Restricted Subsidiary; (b) any Investment in cash and Cash Equivalents or
Investment Grade Securities; (c) any Investment by the Company or any Restricted
Subsidiary in a Person that is a Similar Business if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary or (ii) such Person,
in one transaction or a series of related transactions, is merged, consolidated
or amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary; (d)
any Investment in securities or other assets not constituting cash or Cash
Equivalents and received in connection with an Asset Sale made pursuant to
Section 4.05 of this Indenture or any other disposition of assets not
constituting an Asset Sale; (e) any Investment existing on the Issue Date; (f)
advances to employees not in excess of $10.0 million outstanding at any one
time, in the aggregate; (g) any Investment acquired by the Company or any of its
Restricted Subsidiaries (i) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (ii) as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default; (h) Hedging Obligations permitted under
clause (j) of Section 4.04 of this Indenture; (i) loans and advances to
officers, directors and employees for business-related travel expenses, moving
expenses and other similar expenses, in each case incurred in the ordinary
course of business; (j) any Investment in a Similar Business (other than an
Investment in an Unrestricted Subsidiary) having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (j) that
are at that time outstanding, not to exceed 10% of Total Assets at the time of
such Investment (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value); (k)
Investments the payment for which consists of Equity Interests of the Company
(other than Disqualified Stock); provided, however, that such Equity Interests
will not increase the amount available for Restricted Payments under clause (c)
of Section 4.06 of this Indenture; (l) additional Investments having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (l) that are at that time outstanding, not to exceed
$10.0 million (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value); (m) any
transaction to the extent it constitutes an Investment that is permitted by and
made in accordance with the provisions of clauses (iii) and (xi) of the second
paragraph of Section 4.03 of this Indenture; (n) any Investment by Restricted
Subsidiaries in other Restricted Subsidiaries; (o) Investments consisting of the
licensing or contribution of intellectual property pursuant to joint marketing
arrangements with other Persons; and (p) Investments consisting of purchases and
acquisitions of inventory, supplies, materials and equipment or licenses or
leases of intellectual property, in any case, in the ordinary course of
business.
"Permitted Liens" means the following types of Liens:
17
(i) 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;
(ii) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or asset
which is not leased property subject to such Capitalized Lease Obligation;
(iii) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary acquired in the ordinary course of
business; provided, however, that (A) the related purchase money
Indebtedness shall not exceed the cost of such property or assets and shall
not be secured by any property or assets of the Company or any Restricted
Subsidiary other than the property and assets so acquired and (B) the Lien
securing such Indebtedness shall be created within 180 days of such
acquisition;
(iv) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(v) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(vi) Liens securing Indebtedness under Hedging Obligations;
(vii) Liens securing Acquired Indebtedness incurred in accordance with
Section 4.04 of this Indenture; provided that (A) such Liens secured such
Acquired Indebtedness at the time of and prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary thereof and
were not granted in connection with, or in anticipation of, the incurrence
of such Acquired Indebtedness by the Company or a Restricted Subsidiary
thereof and (B) such Liens do not extend to or cover any property or assets
of the Company or any of the Restricted Subsidiaries other than the
property or assets that secured the Acquired Indebtedness prior to the time
such Indebtedness became Acquired Indebtedness of the Company or such
Restricted Subsidiary and are no more favorable to the lienholders than
those securing the Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by the Company or such Restricted Subsidiary;
(viii) Liens securing obligations under the New Credit Facility;
(ix) 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
18
faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof;
(x) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, including any Lien securing letters of credit
issued in the ordinary course of business, consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money); and
(xi) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements, including
rights of offset and setoff.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"Physical Securities" means one or more certificated Securities in
registered form.
"principal" of a debt security means the principal of the security, plus,
when appropriate, the premium, if any, on the security.
"Private Exchange Notes" has the meaning provided in the Registration
Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Initial Securities in the form set forth on Exhibit A hereto.
"Purchase Agreement" means the Purchase Agreement dated as of January 23,
1998 by and among the Issuers, the Company Issuers and the Initial Purchasers.
"Purchase Amount" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Purchase Date" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Purchase Price" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Qualified Institutional Buyer" or "QIB" means a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act.
19
"Recapitalization Agreement" means the Agreement and Plan of
Recapitalization, Redemption and Purchase, dated as of December 18, 1997 by and
among the Company, BMP/Xxxxxx Holdings Corporation and the other parties
thereto.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Security annexed hereto as Exhibit A.
"Reg. S Global Security" means a global security in registered form
representing the aggregate principal amount at maturity of Securities sold
pursuant to Regulation S under the Securities Act.
"Registrar" see Section 2.03.
"Registration" means a registered exchange offer for the Securities by the
Issuers or other registration of the Securities under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of February 2, 1998 by and among the Issuers and the Initial
Purchasers.
"Related Parties" means any Person controlled by a Permitted Holder,
including any partnership of which a Permitted Holder or any of its Affiliates
is the general partner.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payments" see Section 4.06.
"Restricted Security" has the meaning set forth in Rule 144(a)(3) under the
Securities Act; provided, however, that the Trustee shall be entitled to request
and conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is not then an Unrestricted Subsidiary; provided,
however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an
Unrestricted Subsidiary, such Subsidiary shall be included in the definition of
"Restricted Subsidiary."
"Rule 144A" means Rule 144A under the Securities Act."S&P" means Standard
and Poor's Ratings Group.
"SEC" or "Commission" means the Securities and Exchange Commission.
20
"Securities" means, collectively, the Initial Securities, the Private
Exchange Securities and the Unrestricted Securities treated as a single class of
securities, as amended or supplemented from time to time in accordance with the
terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Senior Subordinated Indenture" means the Indenture dated as of February 2,
1998 among the Company Issuers and United States Trust Company of New York, as
trustee.
"Senior Subordinated Notes" means the $225,000,000 aggregate principal
amount of Senior Subordinated Notes due 2008 of the Company Issuers issued on
the Issue Date.
"Significant Restricted Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" of the Company as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the date hereof.
"Similar Business" means a business the majority of whose revenues are
derived from the manufacture, marketing or sale of containers or any business or
activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto.
"Subordinated Indebtedness" means with respect to the Securities or a
Guarantee, any Indebtedness of the Company or a Guarantor, as the case may be,
which is by its terms subordinated in right of payment to the Securities or the
Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association, or other business entity (other than a partnership) of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof and (ii) any partnership,
joint venture, limited liability company or similar entity of which (x) more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise and (y) such
Person or any Wholly Owned Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture (except as
provided in Section 10.03) until such time as the Indenture is qualified under
the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA.
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"Total Assets" means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust department (or
any successor group of the Trustee) including any vice president, assistant vice
president, assistant secretary, assistant treasurer or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"United States Government Obligations" means direct non-callable
obligations of the United States for the payment of which the full faith and
credit of the United States is pledged.
"Unrestricted Securities" means one or more Securities that do not and are
not required to bear the Private Placement Legend in the form set forth in
Exhibit A hereto, including, without limitation, the Exchange Securities and any
Securities registered under the Securities Act pursuant to and in accordance
with the Registration Rights Agreement.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company which at
the time of determination is an Unrestricted Subsidiary (as designated by the
Board of Directors of the Company, as provided below) and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Subsidiary of the Company (including any existing Subsidiary and any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Equity Interests of, or
owns, or holds any Lien on any property of, the Company or any Subsidiary
thereof (other than any Subsidiary of the Subsidiary to be so designated),
provided that each Subsidiary to be so designated and its Subsidiaries have not
at the time of designation, and do not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries. The Board of Directors of the
Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that, immediately after giving effect to such designation, (i) the
Company could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described Section 4.04 of this Indenture or
(ii) the Fixed Charge Coverage Ratio for the Company and its Restricted
Subsidiaries would be greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation. Any such designation by the Board of
Directors of the Company shall be notified by the Company to the Trustee by
promptly filing with the Trustee a copy of the
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board resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
or Disqualified Stock, as the case may be, at any date, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the date of each successive scheduled principal payment of such
Indebtedness or redemption or similar payment with respect to such Disqualified
Stock multiplied by the amount of such payment, by (ii) the sum of all such
payments.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary that is
a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
100% of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:"Commission" means
the SEC."indenture securities" means the Securities and the
Guarantees."indenture security holder" means a Securityholder."indenture to be
qualified" means this Indenture."indenture trustee" or "institutional trustee"
means the Trustee."obligor" on the indenture securities means the Company, a
Guarantor or any other obligor on the Securities.All other TIA terms used in
this Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;(3)"or" is not
exclusive;(4)words in the singular include the plural, and words in the
plural include the singular;(5)provisions apply to successive events and
23
transactions; and(6)"herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
The Initial Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and the Trustee's certificate of authentication thereof shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Issuers shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its issuance and
shall show the date of its authentication. Global Securities shall bear the
legend set forth in Exhibit C hereto. The aggregate principal amount at maturity
of the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository,
as hereinafter provided.
SECTION 2.2 Execution and Authentication.
Two Officers, including no more than one signing solely as Assistant
Secretary, shall sign, or one Officer (other than as an Assistant Secretary)
shall sign and the Secretary or an Assistant Secretary (each of whom shall, in
each case, have been duly authorized by all requisite corporate actions) shall
attest to such Officer's signature, the Securities for each of the Issuers by
manual or facsimile signature.If an Officer whose signature is on a Security was
an Officer at the time of such execution but no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless. A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.The Trustee shall authenticate (i) Initial Securities for
original issue in an aggregate principal amount at maturity not to exceed
$169,000,000, (ii) Private Exchange Notes from time to time only in exchange for
a like principal amount at maturity of Initial Securities and (iii) Unrestricted
Securities from time to time in exchange for (A) a like principal amount at
maturity of Initial Securities or (B) a like principal amount at maturity of
Private Exchange Notes, in each case upon a written order of each of the Issuers
in the form of an Officers' Certificate. Each such written order shall specify
the amount of Securities to be authenticated and the date on which the
Securities are to be authenticated, whether the Securities are to be Initial
Securities, Private Exchange Securities or Unrestricted Securities and whether
the Securities are to be issued as Physical Securities or Global Securities and
such other information as the Trustee may reasonably request. The aggregate
principal amount at maturity of Securities outstanding at any time may not
exceed $169,000,000, except as provided in Sections 2.07 and
2.08.Notwithstanding the foregoing, all Securities issued under this Indenture
shall vote and
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consent together on all matters (as to which any of such Securities may vote or
consent) as one class and no series of Securities will have the right to vote or
consent as a separate class on any matter.The Trustee may appoint an
authenticating agent reasonably acceptable to the Issuers to authenticate
Securities. Unless otherwise provided in the appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent shall have the same rights as an Agent to
deal with the Issuers and Affiliates of the Issuers.The Securities shall be
issuable only in registered form without coupons in denominations of $1,000
principal amount at maturity and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the Borough of Manhattan,
The City of New York, where (a) Securities may be presented or surrendered for
registration of transfer or for exchange (the "Registrar"), (b) Securities may
be presented or surrendered for payment (the "Paying Agent") and (c) notices and
demands in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Issuers, upon notice to the Trustee, may appoint one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. Except as provided herein, the Company or
any Guarantor may act as Paying Agent, Registrar or co-Registrar. The Issuers
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Issuers shall notify the Trustee of the name and address of any such Agent. If
the Issuers fail to maintain a Registrar or Paying Agent, or fail to give the
foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 7.07.The Issuers initially
appoint the Trustee as Registrar and Paying Agent until such time as the Trustee
has resigned or a successor has been appointed.
SECTION 2.4 Agent To Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of Accreted
Value or principal of, or interest on, the Securities, and shall notify the
Trustee of any Default by the Issuers in making any such payment. The Issuers at
any time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Issuers to the
Paying Agent (if other than an Issuer), the Paying Agent shall have no further
liability for such assets. If an Issuer, any Guarantor or any of their
respective Affiliates acts as Paying Agent, it shall, on or before each due date
of the Accreted Value or principal of or interest on the Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the Accreted Value or principal or interest so becoming due
until such sums
25
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
SECTION 2.5 Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the
Trustee before each Interest Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.6 Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount at maturity of Securities of other authorized denominations of
the same series, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Issuers and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Issuers shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or other governmental charge
payable upon exchanges or transfers pursuant to Section 2.02, 2.10, 3.06, 4.05,
4.14, or 10.05). The Registrar or co- Registrar shall not be required to
register the transfer or exchange of any Security (i) during a period beginning
at the opening of business 15 days before the mailing of a notice of redemption
of Securities and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three
hereof, except the unredeemed portion of any Security being redeemed in part.
Prior to the registration of any transfer by a Holder as provided herein, the
Issuers, the Trustee and any Agent shall treat the person in whose name the
Security is registered as the owner thereof for all purposes whether or not the
Security shall be overdue, and neither the Issuers, the Trustee nor any Agent
shall be affected by notice to the contrary. Any Holder of a beneficial interest
in a Global Security shall, by acceptance of such beneficial interest in a
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Depository (or its agent), and that ownership of a beneficial interest in a
Global Security shall be required to be reflected in a book entry.
SECTION 2.7 Securities.
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If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Issuers shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements for replacement of Securities are met.
Such Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Issuers and the Trustee, to protect the Issuers, the
Trustee and any Agent from any loss which any of them may suffer if a Security
is replaced The Issuers may charge such Holder for its reasonable out-of-pocket
expenses in replacing a Security, including reasonable fees and expenses of
counsel.Every replacement Security is an additional obligation of the Issuers.
SECTION 2.8 Securities
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because an
Issuer or any of its Affiliates holds the Security.If a Security is replaced
pursuant to Section 2.07 (other than a mutilated Security surrendered for
replacement), it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
A mutilated Security ceases to be outstanding upon surrender of such Security
and replacement thereof pursuant to Section 2.07.If on a Redemption Date,
Purchase Date or the Final Maturity Date the Paying Agent holds money sufficient
to pay all of the Accreted Value or principal and interest due on the Securities
payable on that date, and is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9 Securities.
In determining whether the Holders of the required principal amount at
maturity of Securities have concurred in any direction, waiver or consent,
Securities owned by an Issuer, a Guarantor or any of their respective Affiliates
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that a Trust Officer of the Trustee actually knows are so owned
shall be disregarded. The Issuers shall notify the Trustee, in writing, when an
Issuer, a Guarantor or any of their respective Affiliates repurchases or
otherwise acquires Securities and of the aggregate principal amount at maturity
of such Securities so repurchased or otherwise acquired.
SECTION 2.10 Securities.
Until definitive Securities are ready for delivery, the Issuers may prepare
and the Trustee shall authenticate temporary Securities upon receipt of a
written order of the Issuers in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated.Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Issuers consider
appropriate for temporary Securities. Without
27
unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate
upon receipt of a written order of the Issuers pursuant to Section 2.02
definitive Securities in exchange for temporary Securities.
SECTION 2.11 Cancellation.
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel, and at the written direction of the Issuers,
deliver cancelled Securities to the Issuers. Subject to Section 2.07, the
Issuers may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation. If an Issuer or any Guarantor shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
SECTION 2.12 Defaulted Interest.
The Issuers shall pay interest on overdue principal from time to time on
demand at the rate of interest then borne by the Securities. The Issuers shall,
to the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) at the rate of interest then borne by
the Securities.If the Issuers default in a payment of interest on the
Securities, they shall pay the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest to the Persons who are Holders on
a subsequent special record date, which date shall be the fifteenth day
preceding the date fixed by the Issuers for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the subsequent special record date, the Issuers shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.Notwithstanding the
foregoing, any interest which is paid prior to the expiration of the 30-day
period set forth in Section 6.01(i) shall be paid to Holders as of the Interest
Record Date for the Interest Payment Date for which interest has not been paid.
SECTION 2.13 CUSIP Number.
The Issuers in issuing the Securities will use a "CUSIP" number and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided , however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. The Issuers shall
promptly notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14 Deposit of Moneys.
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Prior to 10:00 a.m. New York City time on each Interest Payment Date,
Redemption Date, Purchase Date and the Final Maturity Date, the Issuers shall
deposit with the Paying Agent in immediately available funds money sufficient to
make cash payments, if any, due on such Interest Payment Date, Redemption Date,
Purchase Date or Final Maturity Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, Redemption Date, Purchase Date or Final Maturity Date, as the case
may be.
SECTION 2.15 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
Members of, or participants in, the Depository ("Participants") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated by the Issuers, the Trustee and any
agent of the Issuers or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Securities may be transferred or
exchanged for Physical Securities in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16; provided, however, that
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the Depository
notifies the Issuers that it is unwilling or unable to continue as Depository
for any Global Security and a successor Depository is not appointed by the
Issuers within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a request from the Depository
to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuers shall execute, and the Trustee shall upon written instructions
from the Issuers authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in the Global
Securities, an equal aggregate principal amount at maturity of Physical
Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (b) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
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(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
SECTION 2.16 Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical Securities
are presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal
amount at maturity of Physical Securities of other authorized
denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the Physical
Securities presented or surrendered for Registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act, such Physical Securities
shall be accompanied, in the sole discretion of the Issuers, by the
following additional information and documents, as applicable:
((A) if such Physical Security is being delivered to the
Registrar or co- Registrar by a Holder for Registration in the name of
such Holder, without transfer, a certification from such Holder to
that effect (substantially in the form of Exhibit D hereto); or
(B) if such Physical Security is being transferred to a QIB in
accordance with Rule 144A, a certification to that effect
(substantially in the form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a certification to that
effect (substantially in the form of Exhibit D hereto) and a
transferee letter of representation substantially in the form of
Exhibit E hereto and, at the option of the Issuers, an Opinion of
Counsel reasonably satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act; or
(D) if such Physical Security is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit D hereto) and, at the
option of the Issuers, an Opinion of Counsel reasonably
30
satisfactory to the Issuers to the effect that such transfer is in
compliance with the Securities Act; or
(E) if such Physical Security is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (substantially in the form of
Exhibit D hereto) and, at the option of the Issuers, an Opinion of
Counsel reasonably acceptable to the Issuers to the effect that such
transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Security for a Beneficial
Interest in a Global Security. A Physical Security the offer and sale of which
has not been registered under the Securities Act may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar of a
Physical Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or co-Registrar, together with:
(A) certification, substantially in the form of Exhibit D hereto, that
such Physical Security is being transferred (I) to a QIB or (II) to an
Accredited Investor and, with respect to (II), at the option of the
Issuers, an Opinion of Counsel reasonably acceptable to the Issuers to
the effect that such transfer is in compliance with the Securities
Act; and
(B) written instructions directing the Registrar or co-Registrar to make,
or to direct the Depository to make, an endorsement on the applicable
Global Security to reflect an increase in the aggregate amount of the
Securities represented by the Global Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the principal amount at maturity of Securities represented by the
applicable Global Security to be increased accordingly. If no Global Security is
then outstanding, the Issuers shall, unless either of the events in the proviso
to Section 2.15(b) have occurred and are continuing, issue and the Trustee
shall, upon written instructions from the Issuers in accordance with Section
2.02, authenticate such a Global Security in the appropriate principal amount at
maturity.
(c) Transfer and Exchange of Global Securities. The transfer and exchange
of Global Securities or beneficial interests therein shall be effected through
the Depository in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depository therefor. Upon
receipt by the Registrar or Co- Registrar of written instructions, or such other
instruction as is customary for the Depository, from the Depository or its
nominee, requesting the Registration of transfer of an interest in a Global
Security to another type of Global Security, together with the applicable Global
Securities (or, if the applicable type of Global Security required to represent
the interest as requested to be transferred is not then
31
outstanding, only the Global Security representing the interest being
transferred), the Registrar or Co-Registrar shall cancel such Global Securities
(or Global Security) and the Issuers shall issue and the Trustee shall, upon
written instructions from the Issuers in accordance with Section 2.02,
authenticate new Global Securities of the types so cancelled (or the type so
cancelled and applicable type required to represent the interest as requested to
be transferred) reflecting the applicable increase and decrease of the principal
amount at maturity of Securities represented by such types of Global Securities,
giving effect to such transfer. If the applicable type of Global Security
required to represent the interest as requested to be transferred is not
outstanding at the time of such request, the Issuers shall issue and the Trustee
shall, upon written instructions from the Issuers in accordance with Section
2.02, authenticate a new Global Security of such type in principal amount at
maturity equal to the principal amount at maturity of the interest requested to
be transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a Physical
Security.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Physical Security;
provided, however, that prior to the Registration, a transferee that is a
QIB or Institutional Accredited Investor may not exchange a beneficial
interest in Global Security for a Physical Security. Upon receipt by the
Registrar or co-Registrar of written instructions, or such other form of
instructions as is customary for the Depository, from the Depository or its
nominee on behalf of any Person (subject to the previous sentence) having a
beneficial interest in a Global Security and upon receipt by the Trustee of
a written order or such other form of instructions as is customary for the
Depository or the Person designated by the Depository as having such a
beneficial interest containing registration instructions and, in the case
of any such transfer or exchange of a beneficial interest in Securities the
offer and sale of which have not been registered under the Securities Act,
the following additional information and documents:
(A) if such beneficial interest is being transferred in reliance on Rule
144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit D hereto) and, at the
option of the Issuers, an Opinion of Counsel reasonably satisfactory
to the Issuers to the effect that such transfer is in compliance with
the Securities Act; or
(B) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (substantially in the form of
Exhibit D hereto) and, at the option of the Issuers, an Opinion of
Counsel reasonably satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Registrar or co- Registrar, the aggregate principal amount at maturity
of the applicable Global Security to be reduced
32
and, following such reduction, the Issuers will execute and, upon receipt
of an authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and deliver to
the transferee a Physical Security in the appropriate principal amount at
maturity.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Registrar or co-Registrar in writing. The Registrar or
co-Registrar shall deliver such Physical Securities to the Persons in whose
names such Physical Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar or co- Registrar shall deliver only
Securities that bear the Private Placement Legend unless, and the Trustee is
hereby authorized to deliver Securities without the Private Placement Legend if,
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Issuers and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act; (ii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act (including pursuant to a Registration); or (iii) the date of such
transfer, exchange or replacement is two years after the later of (x) the Issue
Date and (y) the last date that an Issuer or any affiliate (as defined in Rule
144 under the Securities Act) of an Issuer was the owner of such Securities (or
any predecessor thereto).
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
Each Holder of a Security agrees to indemnify the Issuers and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable
33
law with respect to any transfer of any interest in any Security (including any
transfers between or among Participants or beneficial owners of interest in any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15 or this Section 2.16. The
Issuers 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.
ARTICLE III
REDEMPTION
SECTION 3.1 Notices to Trustee.
If the Issuers want to redeem Securities pursuant to paragraph 5 or 6 of
the Securities at the applicable redemption price set forth thereon, they shall
notify the Trustee in writing of the Redemption Date and the principal amount at
maturity of Securities to be redeemed. The Issuers shall give such notice to the
Trustee at least 60 days before the Redemption Date (unless a shorter notice
shall be agreed to by the Trustee in writing), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
SECTION 3.2 Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not so listed, on a pro rata basis, by lot or
in such other manner as the Trustee shall deem fair and appropriate.
The Trustee may select for redemption portions of the principal amount at
maturity of Securities that have denominations equal to or larger than $1,000
principal amount at maturity. Securities and portions of them the Trustee so
selects shall be in amounts of $1,000 principal amount at maturity or integral
multiples thereof. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Issuers shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
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Each notice of redemption shall identify the Securities to be redeemed
(including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) redemption price;
(3) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that, unless the Issuers default in making the redemption payment,
Accreted Value or interest on Securities called for redemption ceases to
accrete or accrue, as the case may be, on and after the Redemption Date and
the only remaining right of the Holders is to receive payment of the
redemption price upon surrender to the Paying Agent; and
(6) if any Security is being redeemed in part, the portion of the
principal amount at maturity of such Security to be redeemed and that,
after the Redemption Date, upon surrender of such Security, a new Security
or Securities in principal amount at maturity equal to the unredeemed
portion thereof will be issued.
At the Issuers' request, the Trustee shall give the notice of redemption on
behalf of the Issuers, in the Issuers' name and at the Issuers' expense.
SECTION 3.4 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
SECTION 3.5 Deposit of Redemption Price.
At least one Business Day before the Redemption Date, the Issuers shall
deposit with the Paying Agent (or if an Issuer is Paying Agent, shall, on or
before the Redemption Date, segregate and hold in trust) money sufficient to pay
the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date other than Securities or portions thereof called for
redemption on that date which have been delivered by the Issuers to the Trustee
for cancellation.If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Issuers to deposit with the
35
Paying Agent money sufficient to pay the redemption price thereof, the principal
and accrued and unpaid interest, if any, thereon shall, until paid or duly
provided for, bear interest as provided in Sections 2.12 and 4.01 with respect
to any payment default.
SECTION 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate and deliver at the expense of the Issuers to the Holder a new
Security equal in principal amount at maturity to the unredeemed portion of the
Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay the Accreted Value or principal of and interest on
the Securities in the manner provided in the Securities and the Registration
Rights Agreement. An installment of Accreted Value or principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent (other
than an Issuer, a Guarantor or any of their respective Affiliates) holds on that
date money designated for and sufficient to pay the installment in full and is
not prohibited from paying such money to the Holders of the Securities pursuant
to the terms of this Indenture.The Issuers shall pay cash interest on overdue
principal at the same rate per annum borne by the Securities. The Issuers shall
pay cash interest on overdue installments of interest at the same rate per annum
borne by the Securities, to the extent lawful, as provided in Section 2.12.
SECTION 4.2 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The City of New
York, the office or agency required under Section 2.03. The Issuers shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuers shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 13. The
Issuers hereby initially designate the Trustee at its address set forth in
Section 13.02 as their office or agency in The Borough of Manhattan, The City of
New York, for such purposes.
SECTION 4.3 Limitations on Transactions with Affiliates.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the
36
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction")
involving aggregate consideration in excess of $5.0 million, unless (a) such
Affiliate Transaction is on terms that are not materially less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (b) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, the Company delivers to the Trustee a
resolution adopted by the majority of the Board of Directors of the Company,
approving such Affiliate Transaction and set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (a) above.
The foregoing provisions will not apply to the following: (i) transactions
between or among the Company and/or any of its Restricted Subsidiaries; (ii)
Restricted Payments permitted by Section 4.06 of this Indenture; (iii) the
payment of annual management, consulting, monitoring and advisory fees and
related expenses to Blackstone, Graham Packaging Corporation and their
respective Affiliates; (iv) the payment of reasonable and customary fees paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary; (v) payments by the
Company or any of its Restricted Subsidiaries to Blackstone and its Affiliates
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which payments are
approved by the majority of the Board of Directors of the Company, in good
faith; (vi) transactions in which the Company or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
Independent Financial Advisor stating that such transaction is fair to the
Company or such Restricted Subsidiary from a financial point of view or meets
the requirements of clause (a) of the preceding paragraph; (vii) payments or
loans to employees or consultants which are approved by a majority of the Board
of Directors of the Company in good faith; (viii) any agreement as in effect as
of the Issue Date or any amendment thereto (so long as any such amendment is not
disadvantageous to the Holders of the Securities in any material respect) or any
transaction contemplated thereby; (ix) the existence of, or the performance by
the Company or any Restricted Subsidiary of its obligations under the terms of,
the Recapitalization Agreement, or any agreement contemplated thereunder
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements
which it may enter into thereafter; provided, however, that the existence of or
the performance by the Company or any Restricted Subsidiary of obligations under
any future amendment to any such existing agreement or under any similar
agreement entered into after the Issue Date shall only be permitted by this
clause (ix) to the extent that the terms of any such amendment or new agreement
are not otherwise disadvantageous to the Holders of the Securities in any
material respect; (x) the payment of all fees, expenses, bonuses and awards
related to the transactions contemplated by the Recapitalization Agreement,
including fees to Blackstone; and (xi) transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms of this
Indenture which are fair to the Company and its Restricted Subsidiaries, in the
reasonable determination of the majority of the Board of Directors of the
Company, or are on terms at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party.
37
SECTION 4.4 Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur" and collectively, an "incurrence") any
Indebtedness (including Acquired Indebtedness) or issue any shares of
Disqualified Stock; provided, however, that the Company and any Restricted
Subsidiary may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company's and the Restricted Subsidiaries' most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 1.75 to 1.00 (determined
on a pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period).
The foregoing limitations will not apply to: (a) the incurrence by the
Company or its Restricted Subsidiaries of Indebtedness under the New Credit
Facility and the issuance and creation of letters of credit and banker's
acceptances thereunder (with letters of credit and banker's acceptances being
deemed to have a principal amount equal to the face amount thereof) up to an
aggregate principal amount of $650 million outstanding at any one time; (b) the
incurrence by the Issuers of Indebtedness represented by the Securities; (c)
Indebtedness of the Company and its Restricted Subsidiaries existing on the
Issue Date (other than Indebtedness described in clauses (a) and (b)), including
the Senior Subordinated Notes and the Company's guarantee thereof (and any
future guarantees thereof); (d) Indebtedness (including Capitalized Lease
Obligations) incurred by the Company or any of its Restricted Subsidiaries to
finance the purchase, lease or improvement of property (real or personal) or
equipment (whether through the direct purchase of assets or the Capital Stock of
any Person owning such assets) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then outstanding
and incurred pursuant to this clause (d) and including all Refinancing
Indebtedness (as defined below) incurred to refund, refinance or replace any
other Indebtedness incurred pursuant to this clause (d), does not exceed 15% of
Total Assets at the time of the respective incurrence; (e) Indebtedness incurred
by the Company or any of its Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of credit in respect of
workers' compensation claims or self-insurance, or other Indebtedness with
respect to reimbursement type obligations regarding workers' compensation
claims; (f) Indebtedness arising from agreements of the Company or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such acquisition;
(g) Indebtedness of the Company to a Restricted Subsidiary; provided that any
such Indebtedness shall be subordinated in right of payment to the Securities;
provided, further, that any subsequent issuance or transfer of any Capital Stock
or any other event which
38
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any other subsequent transfer of any such Indebtedness (except to the Company
or another Restricted Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness; (h) shares of preferred stock of a Restricted
Subsidiary issued to the Company or another Restricted Subsidiary; provided that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of preferred
stock (except to the Company or another Restricted Subsidiary) shall be deemed,
in each case, to be an issuance of such shares of preferred stock; (i)
Indebtedness of a Restricted Subsidiary to the Company or another Restricted
Subsidiary; provided that any subsequent transfer of any such Indebtedness
(except to the Company or another Restricted Subsidiary) shall be deemed, in
each case, to be an incurrence of such Indebtedness; (j) Hedging Obligations
that are incurred in the ordinary course of business (1) for the purpose of
fixing or hedging interest rate risk with respect to any Indebtedness that is
permitted by the terms of this Indenture to be outstanding; (2) for the purpose
of fixing or hedging currency exchange rate risk with respect to any currency
exchanges; or (3) for the purpose of fixing or hedging commodity price risk with
respect to any commodity purchases; (k) obligations in respect of performance
and surety bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business; (l) Indebtedness of
any Guarantor in respect of such Guarantor's Guarantee; (m) Indebtedness or
Disqualified Stock of the Company and any of its Restricted Subsidiaries not
otherwise permitted hereunder in an aggregate principal amount or liquidation
preference which, when aggregated with the principal amount and liquidation
preference of all other Indebtedness and Disqualified Stock then outstanding and
incurred pursuant to this clause (m), does not exceed $75.0 million at any one
time outstanding; (n) (i) any guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness or other obligations of any of the Company's
Restricted Subsidiaries and any guarantee by a Restricted Subsidiary that is a
Guarantor of Indebtedness of the Company so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary or the Company, as the case
may be, is permitted under the terms of this Indenture and (ii) any Excluded
Guarantee of a Restricted Subsidiary; (o) the incurrence by the Company or any
of its Restricted Subsidiaries of Indebtedness which serves to refund, refinance
or restructure any Indebtedness incurred as permitted under the first paragraph
of this covenant, this clause (o) and clauses (b) and (c) above and (q) below,
or any Indebtedness issued to so refund, refinance or restructure such
Indebtedness, including additional Indebtedness incurred to pay premiums and
fees in connection therewith (the "Refinancing Indebtedness") prior to its
respective maturity; provided, however, that such Refinancing Indebtedness (i)
has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining Weighted Average
Life to Maturity of the Indebtedness being refunded or refinanced, (ii) to the
extent such Refinancing Indebtedness refinances Indebtedness subordinated or
pari passu to the Securities, such Refinancing Indebtedness is subordinated or
pari passu to the Securities at least to the same extent as the Indebtedness
being refinanced or refunded and (iii) shall not include (x) Indebtedness of a
Restricted Subsidiary that is not a Guarantor that refinances Indebtedness of
the Company or (y) Indebtedness of the Company or a Restricted Subsidiary that
refinances Indebtedness of an Unrestricted Subsidiary; and provided, further,
that subclauses (i) and (ii) of this clause (o) will not apply to any refunding
or refinancing of any Indebtedness of a Restricted Subsidiary; (p) other
Indebtedness in an amount not greater than twice the amount of Permanent
39
Qualified Equity Contributions after the Issue Date at any one time outstanding;
and (q) Indebtedness or Disqualified Stock of Persons that are acquired by the
Company or any of its Restricted Subsidiaries or merged into a Restricted
Subsidiary in accordance with the terms of this Indenture; provided that such
Indebtedness or Disqualified Stock is not acquired in contemplation of such
acquisition or merger; and provided, further, that after giving effect to such
acquisition, either (i) the Company would be permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first sentence of this covenant or (ii) the Fixed Charge Coverage
Ratio is greater than immediately prior to such acquisition.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of permitted Indebtedness described in clauses (a) through (q) above
or is entitled to be incurred pursuant to the first paragraph of this covenant,
the Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this covenant and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional
Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes
of this covenant
SECTION 4.5 Limitation on Asset Sales.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, cause, make or suffer to exist an Asset Sale, unless (x) the
Company or its Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Company) of the assets sold or otherwise
disposed of and (y) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary, as the case may be, is in the form of
cash or Cash Equivalents; provided that the amount of (a) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance sheet
or in the notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Securities) that are
assumed by the transferee of any such assets without recourse to the Company or
any of the Restricted Subsidiaries, (b) any notes or other obligations received
by the Company or such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received) within 180 days following the closing of such Asset Sale,
(c) any Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate fair market
value, taken together with all other Designated Noncash Consideration received
pursuant to this clause (c) that is at that time outstanding, not to exceed 15%
of Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value), and (d) any assets received in exchange for assets
related to a Similar Business of comparable market value, in the good faith
determination of, the Board of Directors of the Company, shall be deemed to be
cash for purposes of this provision.
40
Within 365 days after Holdings' or any Restricted Subsidiary's receipt of
the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary
may apply the Net Proceeds from such Asset Sale, at its option, (i) to
permanently reduce Obligations under the New Credit Facility (and to
correspondingly reduce commitments with respect thereto) or other Indebtedness
of a Restricted Subsidiary or Pari Passu Indebtedness (provided that if the
Company shall so reduce Obligations under Pari Passu Indebtedness, it will
equally and ratably reduce Obligations under the Securities if the Securities
are then redeemable or, if the Securities may not be then redeemed, the Issuers
shall make an Offer to Purchase to all Holders to purchase at 100% of the
Accreted Value thereof the amount of Securities that would otherwise be
redeemed), (ii) to an investment in any one or more businesses, capital
expenditures or acquisitions of other assets in each case, used or useful in a
Similar Business and/or (iii) to make an investment in properties or assets that
replace the properties and assets that are the subject of such Asset Sale.
Pending the final application of any such Net Proceeds, the Company or such
Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Net Proceeds in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sale
that are not invested as provided and within the time period set forth in the
first sentence of this paragraph (it being understood that any portion of such
Net Proceeds used to make an offer to purchase Securities, as described in
clause (i) above, shall be deemed to have been invested whether or not such
offer is accepted) will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuers shall
make an Offer to Purchase to all Holders of Securities to purchase the maximum
principal amount at maturity of Securities that is an integral multiple of
$1,000 that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the Accreted Value thereof on, plus accrued
and unpaid interest, if any, to, the date fixed for the closing of such offer,
in accordance with the procedures set forth below. The Issuers will commence an
Offer to Purchase with respect to Excess Proceeds within ten Business Days after
the date that Excess Proceeds exceed $15.0 million. To the extent that the
aggregate Accreted Value of Securities tendered pursuant to such an Offer to
Purchase is less than the Excess Proceeds, the Company may use any remaining
Excess Proceeds for general corporate or partnership purposes. Upon completion
of any such Offer to Purchase, the amount of Excess Proceeds shall be reset at
zero.
The Issuers will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the repurchase
of the Securities pursuant to such an Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Indenture, the Issuers will comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations described
in this Indenture by virtue thereof.
On or prior to the Purchase Date specified in the Offer to Purchase, the
Issuers shall (i) accept for payment all Securities validly tendered pursuant to
the Offer, (ii) deposit with the Paying Agent or, if an Issuer is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 2.04, money
sufficient to pay the Purchase Price of all Securities or portions thereof so
accepted and (iii) deliver or cause to be delivered to the Trustee for
cancellation all
41
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Issuers. The Paying
Agent (or an Issuer, if so acting) shall promptly mail or deliver to Holders of
Securities so accepted, payment in an amount equal to the Purchase Price for
such Securities, and the Trustee shall promptly authenticate and mail or deliver
to each Holder of Securities a new Security or Securities equal in principal
amount at maturity to any unpurchased portion of the Security surrendered as
requested by the Holder. Any Security not accepted for payment shall be promptly
mailed or delivered by the Issuers to the Holder thereof. The Issuers shall
publicly announce the results of the Offer on or as soon as practicable after
the Purchase Date.
SECTION 4.6 Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (other than (A) dividends or distributions by the
Company payable in Equity Interests (other than Disqualified Stock) of the
Company or (B) dividends or distributions by a Restricted Subsidiary so long as,
in the case of any dividend or distribution payable on or in respect of any
class or series of securities issued by a Restricted Subsidiary other than a
Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of securities);
(ii) purchase or otherwise acquire or retire for value any Equity Interests of
the Company; (iii) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value, in each case, prior to any scheduled
repayment or maturity, any Subordinated Indebtedness (other than (A) the
payment, redemption, repurchase, defeasance, acquisition or retirement of
Subordinated Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in any case due within one
year of the date of such payment, redemption, repurchase, defeasance,
acquisition or retirement, and (B) Indebtedness permitted under clauses (g) and
(i) of Section 4.04 of this Indenture); or (iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless, at the time of
such Restricted Payment: (a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; (b) immediately after
giving effect to such transaction on a pro forma basis, the Company could incur
$1.00 of additional Indebtedness under the provisions of the first paragraph of
Section 4.04 of this Indenture; and (c) such Restricted Payment, together with
the aggregate amount of all other Restricted Payments made by the Company and
its Restricted Subsidiaries after the Issue Date (including Restricted Payments
permitted by clauses (i), (ii) (with respect to the repurchase, retirement or
other acquisition of Retired Capital Stock pursuant to clause (a) thereof and
the payment of dividends on Retired Capital Stock pursuant to clause (b)
thereof), (v), (vi), (ix) and (x) of the next succeeding paragraph, but
excluding all other Restricted Payments permitted by the next succeeding
paragraph), is less than the sum of (i) 50% of the cumulative Consolidated Net
Income of the Company for the period (taken as one accounting period) from the
first day after the Issue Date to the date of such Restricted Payment (or, in
the case such Consolidated Net Income for such period is a deficit, minus 100%
of such deficit), plus (ii) 100% of the aggregate net proceeds, including cash
and the fair market value of
42
property other than cash (as determined in good faith by the Company), received
by the Company since the Issue Date from the issue or sale of Equity Interests
of the Company (including Refunding Capital Stock (as defined below) but
excluding Disqualified Stock), including such Equity Interests issued upon
conversion of Indebtedness or upon exercise of warrants or options, plus (iii)
100% of the aggregate amount of contributions to the capital of the Company
since the Issue Date (other than Excluded Contributions), plus (iv) 100% of the
aggregate amount received in cash and the fair market value of property other
than cash (as determined in good faith by the Company) received from (A) the
sale or other disposition (other than to the Company or a Restricted Subsidiary)
of Restricted Investments made by the Company and its Restricted Subsidiaries or
(B) the sale (other than to the Company or a Restricted Subsidiary) of the
Capital Stock of an Unrestricted Subsidiary, plus (v) in case any Unrestricted
Subsidiary has been redesignated a Restricted Subsidiary or has been merged,
consolidated or amalgamated with or into, transfers or conveys assets to, or is
liquidated into, the Company or a Restricted Subsidiary, the fair market value
(as determined in good faith by the Company) of such Investment in such
Unrestricted Subsidiary at the time of such redesignation, combination or
transfer (or of the assets transferred or conveyed, as applicable), after
deducting any Indebtedness associated with the Unrestricted Subsidiary so
designated or combined or with the assets so transferred or conveyed.The
foregoing provisions will not prohibit: (i) the payment of any dividend or
distribution within 60 days after the date of declaration thereof, if at the
date of declaration such payment would have complied with the provisions of this
Indenture; (ii) (a) the repurchase, retirement or other acquisition of any
Equity Interests (the "Retired Capital Stock") or Subordinated Indebtedness of
the Company in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of
the Company (other than any Disqualified Stock) or contributions to the common
equity capital of the Company (the "Refunding Capital Stock"), and (b) the
declaration and payment of dividends on the Retired Capital Stock out of the
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of Refunding Capital Stock; (iii) the redemption, repurchase or
other acquisition or retirement of Subordinated Indebtedness of the Company made
by exchange for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Company so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount of and accrued and unpaid
interest on the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired for value (plus the amount of any premium required to be
paid under the terms of the instrument governing the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired), (B) such Indebtedness is
subordinated to the Securities at least to the same extent as such Subordinated
Indebtedness so purchased, exchanged, redeemed, repurchased, acquired or retired
for value, (C) such Indebtedness has a final scheduled maturity date equal to or
later than the final scheduled maturity date of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired and (D) such Indebtedness
has a Weighted Average Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired; (iv) the repurchase, retirement or
other acquisition for value (or a dividend or distribution to fund any such
repurchase, retirement or other acquisition) of Equity Interests of the Company
or Investor LP held by any future, present or former employee, director or
consultant of the Company or any Subsidiary of the Company pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement; provided, however,
43
that the aggregate amount paid under this clause (iv) does not exceed in any
calendar year $5.0 million (with unused amounts in any calendar year being
carried over to succeeding calendar years subject to a maximum (without giving
effect to the following proviso) of $10.0 million in any calendar year);
provided, further, that such amount in any calendar year may be increased by an
amount not to exceed (i) the cash proceeds from the sale of Equity Interests of
the Company (or of Investor LP which are contributed to the Company) to members
of management, directors or consultants of the Company and its Subsidiaries that
occurs after the Issue Date (provided that such proceeds have not been included
with respect to determining whether a previous Restricted Payment was permitted
pursuant to the first paragraph of this covenant) plus (ii) the cash proceeds of
key man life insurance policies received by the Company and its Restricted
Subsidiaries after the Issue Date; (v) the declaration and payment of dividends
or distributions to holders of any class or series of Disqualified Stock of the
Company or any of its Restricted Subsidiaries issued or incurred in accordance
with Section 4.04 of this Indenture; (vi) the declaration and payment of
dividends to holders of any class or series of Designated Preferred Stock;
provided, however, that for the most recently ended four full fiscal quarters
for which internal financial statements are available preceding the date of
declaration of any such dividend or distribution, after giving effect to such
dividend or distribution as Fixed Charge on a pro forma basis, the Company and
its Restricted Subsidiaries would have had a Fixed Charge Coverage Ratio of at
least 1.75 to 1.00; (vii) Investments in Unrestricted Subsidiaries having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (vii) that are at that time outstanding, not to exceed
$15.0 million at the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value); (viii) repurchases of (or a dividend or
distribution to fund repurchases of) Equity Interests of the Company or Investor
LP deemed to occur upon exercise of stock options if such Equity Interests
represent a portion of the exercise price of such options; (ix) the payment of
dividends on the Company's Common Stock following the first public offering of
Common Stock of the Company after the Issue Date of up to 6% per annum of the
net proceeds received by the Company in such public offering; (x) the
repurchase, retirement or other acquisition for value after the first
anniversary of the Issue Date (or a dividend or distribution to fund the
repurchase, retirement or other acquisition of) of Equity Interests of the
Company or Investor LP in existence on the Issue Date and which are not held by
Blackstone or any of its Affiliates or the Management Group on the Issue Date
(including any Equity Interests issued in respect of such Equity Interests as a
result of a stock split, recapitalization, merger, combination, consolidation or
otherwise, but excluding any management equity plan or stock option plan or
similar agreement), provided that (A) the aggregate amounts paid under this
clause (x) shall not exceed (I) $15.0 million on or prior to the second
anniversary of the Issue Date or (II) $30.0 million at any time after the second
anniversary of the Issue Date and (B) after giving effect thereto, the Company
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first sentence of
Section 4.04 of this Indenture; (xi) Investments that are made with Excluded
Contributions; (xii) other Restricted Payments in an aggregate amount not to
exceed $15.0 million; (xiii) the payment of any dividend or distribution on
Equity Interests of the Company to the extent necessary to permit direct or
indirect beneficial owners of such Equity Interests to receive tax distributions
in an amount equal to the taxable income of the Company allocated to a partner
multiplied by the highest combined federal and
44
state income tax rate (including, to the extent applicable, alternative minimum
tax) solely as a result of the Company (and any intermediate entity through
which such holder owns such Equity Interests) being a partnership or similar
pass-through entity for federal income tax purposes ("Permitted Tax
Distributions"); and (xiv) Restricted Payments made on the Issue Date
contemplated by the Recapitalization Agreement; provided, however, that at the
time of, and after giving effect to, any Restricted Payment permitted under
clauses (vii), (ix), (x) and (xii), no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof; and
provided, further, that for purposes of determining the aggregate amount
expended for Restricted Payments in accordance with clause (c) of the
immediately preceding paragraph, only the amounts expended under clauses (i),
(ii) (with respect to the repurchase, retirement or other acquisition of Retired
Capital Stock pursuant to clause (a) thereof and the payment of dividends on
Retired Capital Stock pursuant to clause (b) thereof), (v), (vi), (ix) and (x)
shall be included.
As of the Issue Date, all of the Company's Subsidiaries will be Restricted
Subsidiaries. The Company will not permit any Unrestricted Subsidiary to become
a Restricted Subsidiary except pursuant to the second to last sentence of the
definition of "Unrestricted Subsidiary." For purposes of designating any
Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments
by the Company and its Restricted Subsidiaries (except to the extent repaid) in
the Subsidiary so designated will be deemed to be Restricted Payments in an
amount determined as set forth in the last sentence of the definition of
"Investments." Such designation will only be permitted if a Restricted Payment
in such amount would be permitted at such time (whether pursuant to the first
paragraph of this covenant or under clause (vii), (xi) or (xii)) and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
SECTION 4.7 Existence.
Subject to Article Five, the Company shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a corporation, partnership or other entity.
SECTION 4.8 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability, or Lien upon the property, of the Company or any Restricted
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has been made.
SECTION 4.9 Notice of Defaults.
45
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the Company
shall promptly deliver an Officers' Certificate to the Trustee specifying the
Default or Event of Default.
SECTION 4.10 Maintenance of Properties and Insurance.
(a) Subject to Article Five, the Company shall cause all material
properties owned by or leased to it or any Restricted Subsidiary and used or
useful in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in normal condition, repair and working
order and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 4.10 shall prevent
the Company or any Restricted Subsidiary from discontinuing the use, operation
or maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or the Restricted Subsidiary concerned, or of an Officer (or other agent
employed by the Company or of any Restricted Subsidiary) of the Company or such
Restricted Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary, as in the judgment of the Company may be necessary.(b) The Company
shall maintain, and shall cause the Restricted Subsidiaries to maintain,
insurance with responsible carriers against such risks and in such amounts, and
with such deductibles, retentions, self-insured amounts and co-insurance
provisions as in the judgment of the Company may be necessary.
SECTION 4.11 Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after the end of
each of the first three fiscal quarters of the Company and within 90 days after
the close of each fiscal year a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Issuers has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default or Event of Default by the Issuers that occurred during such fiscal
quarter or fiscal year. If they do know of such a Default or Event of Default,
the certificate shall describe all such Defaults or Events of Default, their
status and the action the Company is taking or proposes to take with respect
thereto. The first certificate to be delivered by the Company pursuant to this
Section 4.11 shall be for the period commencing February 2, 1998 and ending
March 31, 1998.
46
SECTION 4.12 Reports to Holders.
The Issuers will deliver to the Trustee within 15 days after the filing of
the same with the Commission, copies of the quarterly and annual reports and of
the information, documents and other reports, if any, which the Issuers are
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. Notwithstanding that the Issuers may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Commission, the Issuers will file with the Commission (and provide the Trustee
and the Holders with copies thereof, without cost to each Holder, within 15 days
after it files them with the Commission), (a) within 90 days after the end of
each fiscal year, annual reports on Form 10-K (or any successor or comparable
form) containing the information required to be contained therein (or required
in such successor or comparable form); (b) within 45 days after the end of each
of the first three fiscal quarters of each fiscal year, reports on Form 10-Q (or
any successor or comparable form); (c) promptly from time to time after the
occurrence of an event required to be therein reported, such other reports on
Form 8-K (or any successor or comparable form); and (d) any other information,
documents and other reports which the Issuers would be required to file with the
Commission if they were subject to Section 13 or 15(d) of the Exchange Act;
provided, however, that the Issuers shall not be so obligated to file such
reports with the Commission if the Commission does not permit such filing, in
which event the Issuers will make available such information to prospective
purchasers of Securities, in addition to providing such information to the
Trustee and the Holders, in each case within 15 days after the time the Issuers
would be required to file such information with the Commission, if they were
subject to Sections 13 or 15(d) of the Exchange Act. Notwithstanding the
foregoing, such requirements shall be deemed satisfied (x) prior to April 30,
1998, if the Issuers deliver to the Trustee and the Holders of the Securities on
or prior to such date copies of the audited financial statements of the Issuers
and (y) prior to May 31, 1998, by filing with the Commission and delivering to
the Trustee and the Holders of the Securities on or prior to such date a
registration statement under the Securities Act that contains the information
that would be required in a Form 10-K for the Issuers for the year ended
December 31, 1997 and a Form 10-Q for the Issuers for the quarter ended March
31, 1998. The Issuers will also comply with the other provisions of TIA Section
314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.
Each of the Issuers and the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law, which would prohibit or forgive the
Issuers or such Guarantor from paying all or any portion of
47
the Accreted Value or principal of and/or interest, if any, on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Issuers and each Guarantor hereby
expressly waive all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.14 Change of Control.
(a) Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall notify the
Holders of the Securities of such occurrence in the manner prescribed by this
Indenture and shall, within 30 days after the Change of Control Date, make an
Offer to Purchase all Securities then outstanding at a purchase price in cash
equal to 101% of the Accreted Value thereof, plus accrued and unpaid interest
thereon, if any, to the Purchase Date (subject to the right of Holders of record
on the relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date). The Issuers' obligations may be satisfied if a third
party makes the Offer to Purchase in the manner, at the times and otherwise in
compliance with the requirements of this Indenture applicable to an Offer to
Purchase made by the Issuers and purchases all Securities validly tendered and
not withdrawn under such Offer to Purchase. Each Holder shall be entitled to
tender all or any portion of the Securities owned by such Holder pursuant to the
Offer to Purchase, subject to the requirement that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal amount at
maturity.
(b) Prior to the mailing of the notice referred to in clause (a) above, but
in any event within 30 days following any Change of Control, the Issuers
covenant to (i) repay in full and terminate all commitments under Indebtedness
under the New Credit Facility and all other Indebtedness of the Company's
Restricted Subsidiaries the terms of which require repayment upon a Change of
Control or offer to repay in full and terminate all commitments under all
Indebtedness under the New Credit Facility and all other such Indebtedness of
the Company's Restricted Subsidiaries and to repay the Indebtedness owed to each
lender which has accepted such offer or (ii) obtain the requisite consents under
the New Credit Facility and all other Indebtedness of the Company's Restricted
Subsidiaries to permit the repurchase of the Securities pursuant to the Offer to
Purchase. The Issuers shall first comply with the covenant in the immediately
preceding sentence before they shall be required to repurchase Securities
pursuant to the Offer to Purchase. The Issuers' failure to comply with the
covenant described in the second preceding sentence or in clause (a) above shall
constitute an Event of Default described in clause (iii) (and not in clause
(ii)) of Section 6.01.
(c) On or prior to the Purchase Date specified in the Offer to Purchase,
the Issuers shall (i) accept for payment all Securities or portions thereof
validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent or,
if an Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.04, money sufficient to pay the Purchase Price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to
48
the Trustee for cancellation all Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Issuers. The Paying Agent (or an Issuer, if so acting) shall
promptly mail or deliver to Holders of Securities so accepted, payment in an
amount equal to the Purchase Price for such Securities, and the Trustee shall
promptly authenticate and mail or deliver to each Holder of Securities a new
Security or Securities equal in principal amount at maturity to any unpurchased
portion of the Security surrendered as requested by the Holder. Any Security not
accepted for payment shall be promptly mailed or delivered by the Issuers to the
Holder thereof. The Issuers shall publicly announce the results of the Offer on
or as soon as practicable after the Purchase Date.
(d) If the Issuers make an Offer to Purchase, the Issuers will comply with
all applicable tender offer laws and regulations, including, to the extent
applicable, Section 14(e) and Rule 14e-1 under the Exchange Act, and any other
applicable federal or state securities laws and regulations and any applicable
requirements of any securities exchange on which the Securities are listed, and
any violation of the provisions of this Indenture relating to such Offer to
Purchase occurring as a result of such compliance shall not be deemed a Default
or an Event of Default.
SECTION 4.15 [Intentionally Omitted]
SECTION 4.16 Limitations on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to: (a) (i) pay dividends or make
any other distributions to the Company or any of its Restricted Subsidiaries (1)
on its Capital Stock or (2) with respect to any other interest or participation
in, or measured by, its profits, or (ii) pay any Indebtedness owed to the
Company or any of its Restricted Subsidiaries; (b) make loans or advances to the
Company or any of its Restricted Subsidiaries; or (c) sell, lease or transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries; except (in each case) for such encumbrances or restrictions
existing under or by reason of: (1) contractual encumbrances or restrictions in
effect on the Issue Date, including pursuant to the New Credit Facility and its
related documentation and the Senior Subordinated Indenture; (2) this Indenture
and the Securities; (3) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature discussed in
clause (c) above on the property so acquired; (4) applicable law or any
applicable rule, regulation or order; (5) any agreement or other instrument of a
Person acquired by the Company or any Restricted Subsidiary 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 property or assets of the
Person, so acquired; (6) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary; (7) secured
Indebtedness otherwise permitted to be incurred pursuant to
49
Sections 4.04 and 4.18 of this Indenture that limit the right of the debtor to
dispose of the assets securing such Indebtedness; (8) restrictions on cash or
other deposits or net worth imposed by customers under contracts entered into in
the ordinary course of business; (9) other Indebtedness of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date pursuant to Section 4.04
of this Indenture; (10) customary provisions in joint venture agreements and
other similar agreements entered into in the ordinary course of business; (11)
customary provisions contained in leases and other agreements entered into in
the ordinary course of business; (12) any encumbrances or restrictions of the
type referred to in clauses (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (11) above, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Board of
Directors of the Company, no more restrictive with respect to such dividend and
other payment restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing; (13) any
encumbrances or restrictions that are no more restrictive than those contained
in the New Credit Facility as in effect on the Issue Date; or (14) which will
not in the aggregate cause the Company not to have the funds necessary to pay
the principal of, premium, if any, or interest on the Securities.
SECTION 4.17 [Intentionally Omitted]
SECTION 4.18 Limitation on Liens.
(a) The Company will not directly or indirectly create, incur, assume or
suffer to exist any Lien (other than a Permitted Lien) that secures any
Indebtedness of the Company on any asset or property of the Company, or any
income or profits therefrom, or assign or convey any right to receive income
therefrom, unless the Securities are equally and ratably secured with the
obligations so secured or until such time as such obligations are no longer
secured by a Lien.(b) No Guarantor will directly or indirectly create, incur,
assume or suffer to exist any Lien (other than a Permitted Lien) that secures
any guarantee of Indebtedness of the Company by such Guarantor on any asset or
property of such Guarantor or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless the Guarantee of such
Guarantor is equally and ratably secured with the obligations so secured or
until such time as such guarantee is no longer secured by a Lien.
SECTION 4.19 Limitations on Guarantees of Indebtedness by Restricted
Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary to guarantee the
payment of any Indebtedness of the Company unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a guarantee of payment of the Securities by such Restricted
Subsidiary, except that if such Indebtedness is by its express terms
subordinated in right of payment to the Securities, any such guarantee of such
Restricted Subsidiary with respect to such Indebtedness shall be subordinated in
right of payment
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to such Restricted Subsidiary's Guarantee with respect to the Securities
substantially to the same extent as such Indebtedness is subordinated to the
Securities; provided that this paragraph (a) shall not be applicable to any
guarantee by any Restricted Subsidiary (x) that (A) existed at the time such
Person became a Restricted Subsidiary of the Company and (B) was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary of the Company or (y) that guarantees the payment of Obligations of
the Company under the New Credit Facility or any other bank facility which is
Pari Passu Indebtedness of the Company and any refunding, refinancing or
replacement thereof, in whole or in part, provided that such refunding,
refinancing or replacement thereof constitutes Pari Passu Indebtedness of the
Company and is not incurred pursuant to a registered offering of securities
under the Securities Act or a private placement of securities (including under
Rule 144A) pursuant to an exemption from the registration requirements of the
Securities Act (other than Securities issued pursuant to a bank or similar
credit facility (including the New Credit Facility)), which private placement
provides for registration rights under the Securities Act (any guarantee
excluded by operations of this clause (y) being an "Excluded Guarantee").
(b) Notwithstanding the foregoing and the other provisions of this
Indenture, any Guarantee by a Restricted Subsidiary of the Securities shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer to any person not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release or
discharge of the guarantee which resulted in the creation of such Guarantee,
except a discharge or release by or a result of payment under such Guarantee.
SECTION 4.20 Calculation of Original Issue Discount.
The Issuers shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE V
MERGERS; SUCCESSORS
SECTION 5.1 Mergers, Sale of Assets, etc.
(a) The Company may not consolidate or merge with or into or wind up into
(whether or not the Company is the surviving entity), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to any Person unless (i) the
Company is the surviving entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been made
is a corporation, partnership or limited liability company organized or existing
under the laws of the
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Xxxxxx Xxxxxx, any state thereof, the District of Columbia, or any territory
thereof (the Company or such Person, as the case may be, being herein called the
"Successor Company"); (ii) the Successor Company (if other than the Company)
expressly assumes all the obligations of the Company under this Indenture and
the Securities pursuant to a supplemental indenture or other documents or
instruments in form reasonably satisfactory to the Trustee; (iii) immediately
after such transaction no Default or Event of Default shall have occurred and be
continuing; (iv) immediately after giving pro forma effect to such transaction,
as if such transaction had occurred at the beginning of the applicable
four-quarter period, either (A) the Successor Company (if other than CapCo II)
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first sentence of
Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the
Successor Company (if other than CapCo II) and its Restricted Subsidiaries would
be greater than such ratio for the Company and its Restricted Subsidiaries
immediately prior to such transaction; and (v) the Company shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture. Notwithstanding the foregoing clauses (iii) and
(iv), but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company or to another Restricted Subsidiary and (b)
the Company may merge with or transfer all of its properties and assets to an
Affiliate (including, without limitation, CapCo II) in connection with an IPO
Reorganization so long as the amount of Indebtedness of the Company and its
Restricted Subsidiaries immediately thereafter does not exceed the amount
permitted under Section 4.04 (it being understood that after such transfer of
such property and assets in connection with an IPO Reorganization, the Company
may dissolve). The Successor Company will succeed to, and be substituted for,
the Company under this Indenture and the Securities.
(b) Each Guarantor, if any, shall not, and the Company will not permit a
Guarantor to, consolidate or merge with or into or wind up into (whether or not
such Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, any Person unless (i) such
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership or limited liability company organized
or existing under the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such Guarantor or such Person, as the
case may be, being herein called the "Successor Guarantor"); (ii) the Successor
Guarantor (if other than such Guarantor) expressly assumes all the obligations
of such Guarantor under this Indenture and such Guarantor's Guarantee pursuant
to a supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no Default
or Event of Default shall have occurred and be continuing; and (iv) the
Guarantor shall have delivered or caused to be delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture. The Successor Guarantor will succeed to, and be
substituted for, such Guarantor under this Indenture and such Guarantor's
Guarantee.
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SECTION 5.2 Successor Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Company or a
Guarantor, as the case may be, is not the Successor Company or Successor
Guarantor, as the case may be, and the Successor Company or Successor Guarantor,
as the case may be, is to assume all the Obligations of the Company under the
Securities, this Indenture and the Registration Rights Agreement or of such
Guarantor under its Guarantee, this Indenture and the Registration Rights
Agreement, as the case may be, pursuant to a supplemental indenture, such
Successor Company or Successor Guarantor, as the case may be, shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or such Guarantor, as the case may be, and the Company shall be discharged and
released from its Obligations under this Indenture and the Securities or such
Guarantor shall be discharged from its Obligations under this Indenture and its
Guarantee, as the case may be.
In the event of an IPO Reorganization, CapCo II shall succeed to, and be
substituted for, and may exercise every right and power of the Company, and the
Company shall be discharged and released from its Obligations under this
Indenture and the Securities and may be dissolved, subject to CapCo II's
compliance with Section 5.01(a)(ii) above.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
Each of the following shall be an "Event of Default" for purposes of this
Indenture:
(i) the failure to pay interest on any Security when the same becomes
due and payable and the default continues for a period of 30 days;
(ii) the failure to pay the Accreted Value of or the principal on any
Security, when the same becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to
purchase any Security tendered pursuant to an Offer to Purchase which has
actually been made);
(iii) a default in the observance or performance of any other covenant
or agreement contained in this Indenture which default continues for a
period of 60 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or
the Holders of at least 25% of the outstanding principal amount at maturity
of the Securities (except in the case of a default with respect to Section
5.01 of this Indenture, which will constitute an Event of Default with such
notice requirement but without such passage of time requirement);
53
(iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Significant Restricted
Subsidiary, or the acceleration of the final stated maturity of any such
Indebtedness if the aggregate principal amount of such indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at final maturity or which has been
accelerated, aggregates $20.0 million or more at any time;
(v) one or more judgments in an aggregate amount in excess of $20.0
million shall have been rendered against the Company or any Significant
Restricted Subsidiary and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable, and in the event such judgment is covered by
insurance, an enforcement proceeding has been commenced by any creditor
upon such judgment or decree which is not promptly stayed;
(vi) any Guarantee by a Significant Restricted Subsidiary shall become
null or void or unenforceable (other than in accordance with the terms of
the Senior Subordinated Indenture) or any such Guarantor shall deny its
obligations under its Guarantee;
(vii) the Company or any Significant Restricted Subsidiary pursuant to
or within the meaning of any Bankruptcy Law: (a) admits in writing its
inability to pay its debts generally as they become due; (b) commences a
voluntary case or proceeding; (c) consents to the entry of an order for
relief against it in an involuntary case or proceeding; (d) consents or
acquiesces in the institution of a bankruptcy or insolvency proceeding
against it; (e) consents to the appointment of a Custodian of it or for all
or substantially all of its property; or (f) makes a general assignment for
the benefit of its creditors, or any of them takes any action to authorize
or effect any of the foregoing; or
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company or any
Significant Restricted Subsidiary in an involuntary case or proceeding; (b)
appoints a Custodian of the Company or any Significant Restricted
Subsidiary for all or substantially all of its property; or (c) orders the
liquidation of the Company or any Significant Restricted Subsidiary; and in
each case the order or decree remains unstayed and in effect for 60 days;
provided, however, that if the entry of such order or decree is appealed
and dismissed on appeal, then the Event of Default hereunder by reason of
the entry of such order or decree shall be deemed to have been cured.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
SECTION 6.2 Acceleration.
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If an Event of Default with respect to the Securities (other than an Event
of Default specified in clause (vii) or (viii) of Section 6.01 with respect to
the Company) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount at maturity of the outstanding Securities by
notice in writing to the Company (and to the Trustee if given by the Holders)
may declare the unpaid Accreted Value or principal of (and premium, if any) and
accrued interest, if any, to the date of acceleration on all outstanding
Securities to be due and payable immediately and, upon any such declaration,
such Accreted Value or principal (and premium, if any) and accrued interest, if
any, notwithstanding anything contained in this Indenture or the Securities to
the contrary, shall become immediately due and payable; provided, however, that
so long as the New Credit Facility shall be in full force, if an Event of
Default shall have occurred and be continuing (other than an Event of Default
specified in clause (vii) or (viii) of Section 6.01 with respect to the
Company), the Securities shall not become due and payable until the earlier to
occur of (x) five Business Days following delivery of a written notice by the
Trustee of such acceleration of the Securities to the agent under the New Credit
Facility and (y) the acceleration (ipso facto or otherwise) of any Indebtedness
under the New Credit Facility.
If an Event of Default specified in clause (vii) or (viii) of Section 6.01
with respect to the Company occurs, all unpaid Accreted Value or principal of
(and premium, if any) and accrued interest, if any, on all outstanding
Securities shall ipso facto become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or decree of the
money due in respect of the Securities has been obtained, the Holders of not
less than a majority in aggregate principal amount at maturity of the Securities
then outstanding by written notice to the Trustee may rescind an acceleration
and its consequences if all existing Events of Default (other than the
nonpayment of Accreted Value or principal of and interest, if any, on the
Securities which has become due solely by virtue of such acceleration) have been
cured or waived and if the rescission would not conflict with any judgment or
decree. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3 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
Accreted Value or principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
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SECTION 6.4 Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount at maturity of the outstanding Securities by written
notice to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of Accreted Value or principal of
or interest on any Security as specified in clauses (i) and (ii) of Section 6.01
or a Default in respect of any term or provision of this Indenture that may not
be amended or modified without the consent of each Holder affected as provided
in Section 10.02. The Issuers shall deliver to the Trustee an Officers'
Certificate stating that the requisite percentage of Holders have consented to
such waiver and attaching copies of such consents. In case of any such waiver,
the Issuers, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Securities, respectively. This
paragraph of this Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the
TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from
this Indenture and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.5 Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount at
maturity of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
SECTION 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
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(ii) the Holders of at least 25% in aggregate principal amount at
maturity of the outstanding Securities make a written request to the
Trustee to pursue a remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 60-day period the Holders of a majority in principal
amount at maturity of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request. A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of Accreted Value or principal of and premium, if any
or interest on a Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default in payment of Accreted Value or principal or
interest specified in Section 6.01(i) or (ii) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuers or any other obligor on the Securities for the whole amount
of Accreted Value or principal and accrued interest remaining unpaid, together
with interest overdue on Accreted Value or principal and to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Securities and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Issuers (or any other
obligor upon the Securities), their respective creditors or their respective
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Securityholder to make such payments to the Trustee
57
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.9 Priorities.
If the Trustee collects any money or property pursuant to this Article Six,
it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
Accreted Value or principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for Accreted Value or principal and interest, respectively; and
Third: to the Issuers. The Trustee, upon prior written notice to the
Issuers, may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
SECTION 6.10 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder or
group of Holders of more than 10% in aggregate principal amount at maturity of
the outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the Accreted Value or principal or interest on any
Securities on or after the respective due dates expressed in the Security.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
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(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of
such duties as are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions conforming to the requirements of this Indenture; however, in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(3) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(4) 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
(5) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment
of such funds is not assured to it or it does not receive from such Holders
an indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance
with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
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SECTION 7.2 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely conclusively on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to the
provisions of Section 13.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection and
shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) Any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuer Request or an Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Securityholders pursuant to this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(h) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuers, personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless the
Trustee shall have
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received written notice thereof at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Issuers or their
respective Affiliates with the same rights it would have if it were not Trustee,
subject to Section 7.10 hereof. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuers in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 90 days
after the occurrence thereof. Except in the case of a Default or an Event of
Default in payment of Accreted Value or principal of or interest on any Security
or a Default or Event of Default in complying with Section 5.01, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interest of
Securityholders. This Section 7.05 shall be in lieu of the proviso to Section
315(b) of the TIA and such proviso to Section 315(b) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
SECTION 7.6 Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b),
(c) and (d).A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities are listed.The Issuers shall promptly notify the Trustee in
writing if the Securities become listed on any stock exchange or of any
delisting thereof.
SECTION 7.7 Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such compensation as
the Issuers and the Trustee shall from time to time agree in writing for its
services. The Trustee's
61
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuers shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses, disbursements, expenses and advances
(including fees, disbursements and expenses of its agents and counsel) incurred
or made by it in addition to the compensation for its services except any such
disbursements, expenses and advances as may be attributable to the Trustee's
negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 9.01 hereof.
The Issuers shall indemnify the Trustee for, and hold it harmless against
any and all loss, damage, claims, liability or expense, including taxes (other
than franchise taxes imposed on the Trustee and taxes based upon, measured by or
determined by the income of the Trustee), arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to its own negligence or bad faith. The Trustee shall notify the
Issuers promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Issuers shall
not relieve the Issuers of their obligations hereunder. The Issuers shall defend
the claim and the Trustee shall cooperate in the defense (and may employ its own
counsel) at the Issuers' expense; provided, however, that the Issuers'
reimbursement obligation with respect to counsel employed by the Trustee will be
limited to the reasonable fees and expenses of such counsel.
The Issuers need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld.
To secure the Issuers' payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Securities
or the Purchase Price or redemption price of any Securities to be purchased
pursuant to an Offer to Purchase or redeemed.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) occurs, the expenses (including
the reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Issuers' obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Issuers' obligations pursuant to
Article Nine and any rejection or termination under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuers in writing.
The Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee
62
by so notifying the Trustee and the Issuers in writing and may appoint a
successor Trustee with the Issuers' consent. The Issuers may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under any Bankruptcy
Law;
(c) a custodian or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuers shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount at maturity of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. As promptly as practicable after
that, the retiring Trustee shall transfer, after payment of all sums then owing
to the Trustee pursuant to Section 7.07, all property held by it as Trustee to
the successor Trustee, subject to the Lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 10% in principal amount at maturity of the outstanding
Securities may petition, at the expense of the Issuers, any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Issuers' obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or
banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee.
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SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. If the Trustee has or shall acquire
any "conflicting interest" within the meaning of TIA Section 310(b), the Trustee
and the Issuers shall comply with the provisions of TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuers are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Seven.
SECTION 7.11 Preferential Collection of Claims Against Issuers.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
[INTENTIONALLY OMITTED]
ARTICLE IX
DISCHARGE OF INDENTURE
SECTION 9.1 Termination of Issuers' Obligations.
The Issuers may terminate their substantive obligations in respect of the
Securities by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by it on account of principal of and
interest on all Securities or otherwise. In addition to the foregoing, subject
to the provisions of Article Eight with respect to the creation of the
defeasance trust provided for in the following clause (i), the Issuers may,
provided that no Default or Event of Default has occurred and is continuing or
would arise therefrom (or, with respect to a Default or Event of Default
specified in Section 6.01(vii) or (viii), occurs at any time on or prior to the
123rd calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 123rd day)), terminate
their substantive obligations in respect of Article Four (other than Sections
4.01, 4.02, 4.07, 4.09 and 4.11) and Article Five hereof and any Event of
Default specified in Section 6.01 (iii), (iv), (v) or (vi) by (i) depositing
with the Trustee, under the terms of an irrevocable trust agreement, money or
United States Government Obligations sufficient (without reinvestment) to pay
all remaining Indebtedness on the Securities, (ii) delivering to the Trustee
either an Opinion of Counsel or a
64
ruling directed to the Trustee from the Internal Revenue Service to the effect
that the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and termination of obligations, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that the Issuers'
exercise of the option under this Section 9.01 will not result in any of the
Issuers, the Trustee or the trust created by the Issuers' deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (iv) delivering to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating compliance with all conditions precedent
provided for herein. In addition, the Issuers may, provided that no Default or
Event of Default has occurred and is continuing or would arise therefrom (or,
with respect to a Default or Event of Default specified in Section 6.01(vii) or
(viii), occurs at any time on or prior to the 123rd calendar day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until after such 123rd day)), terminate all of their substantive
obligations in respect of the Securities (including its obligations to pay the
principal of and interest on the Securities) by (i) depositing with the Trustee,
under the terms of an irrevocable trust agreement, money or United States
Government Obligations sufficient (without reinvestment) to pay all remaining
Indebtedness on the Securities, (ii) delivering to the Trustee either a ruling
directed to the Trustee from the Internal Revenue Service to the effect that the
Holders of the Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and termination of obligations
or an Opinion of Counsel addressed to the Trustee based upon such a ruling or
based on a change in the applicable Federal tax law since the date of this
Indenture to such effect, (iii) delivering to the Trustee an Opinion of Counsel
to the effect that the exercise of the option under this Section 9.01 will not
result in any of the Issuers, the Trustee or the trust created by the deposit of
funds pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act and (iv) delivering to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating compliance with all
conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Issuers' obligations in
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13 and 4.01 (but not
with respect to termination of substantive obligations pursuant to the third
sentence of the foregoing paragraph), 4.02, 7.07, 7.08, 9.03 and 9.04 shall
survive until the Securities are no longer outstanding. Thereafter the Issuers'
obligations in Sections 7.07, 9.03 and 9.04 shall survive.
After such delivery or irrevocable deposit and delivery of an Officers'
Certificate and Opinion of Counsel, the Trustee upon request shall acknowledge
in writing the discharge of the Issuers' obligations under the Securities and
this Indenture except for those surviving obligations specified above.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to this Section 9.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
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SECTION 9.2 Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities.
SECTION 9.3 Repayment to Issuers.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to the
Issuers upon written request any excess money held by it at any time. The
Trustee shall pay to the Issuers upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
may at the expense of the Issuers cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Issuers. After payment to the Issuers, Securityholders entitled
to money must look to the Issuers for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of
the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 9.4 Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 9.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuers'
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.01 until such
time as the Trustee is permitted to apply all such money or United States
Government Obligations in accordance with Section 9.01; provided, however, that
if the Issuers have made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Issuers shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or United States Government Obligations held by the
Trustee.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Without Consent of Holders.
The Issuers and each Guarantor, when authorized by a resolution of their
respective Boards of Directors, and the Trustee may amend or supplement this
Indenture or the Securities without notice to or consent of any Securityholder:
66
(a) to cure any ambiguity, defect or inconsistency; provided, however,
that such amendment or supplement does not adversely affect the rights of
any Holder;
(b) to evidence the succession of another Person to the Company and/or
to effect the assumption by a successor Person of all obligations of the
Company under the Securities and this Indenture in connection with any
transaction (including, without limitation, an IPO Reorganization)
complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or
rights to the Holders;
(f) to make any other change that does not adversely affect the rights
of any Holder under this Indenture;
(g) to evidence the succession of another Person to any Guarantor and
the assumption by any such successor of the covenants of such Guarantor
herein and in the Guarantee in connection with any transaction complying
with Article Five of this Indenture;
(h) to add to the covenants of the Company or a Guarantor for the
benefit of the Holders, or to surrender any right or power herein conferred
upon the Company or any Guarantor;
(i) to secure the Securities pursuant to the requirements of Section
4.18 or otherwise; or
(j) to reflect the release of a Guarantor from its obligations with
respect to its Guarantee or to add a Guarantor, in each case pursuant to
the requirements of Section 4.19;
provided, however, that the Issuers delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 10.01.
SECTION 10.2 With Consent of Holders.
Subject to Section 6.07, the Issuers and the Guarantors, when authorized by
a resolution of their respective Boards of Directors, and the Trustee may amend
or supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount at maturity of the
outstanding Securities. Subject to Section 6.07, the Holders
67
of a majority in principal amount at maturity of the outstanding Securities may
waive compliance by the Issuers or any Guarantor with any provision of this
Indenture or the Securities. However, without the consent of each Securityholder
affected, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, may not:
(a) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any
Security, or change or have the effect of changing the definition of
Accreted Value;
(b) reduce the principal of or change or have the effect of changing
the fixed maturity of any Security, or change the date on which any
Security may be subject to redemption or repurchase, or reduce the
redemption or repurchase price therefor;
(c) make any Security payable in money other than that stated in the
Security;
(d) amend, change or modify in any material respect the obligation of
the Issuers to make and consummate an Offer to Purchase in the event of a
Change of Control or with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with respect
thereto;
(e) modify any provisions of Section 6.04 (other than to add sections
of this Indenture or the Securities subject thereto) or 6.07 or this
Section 10.02 (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without the
consent of each Securityholder affected);
(f) reduce the percentage of the principal amount at maturity of
outstanding Securities necessary for amendment to or waiver of compliance
with any provision of this Indenture or the Securities or for waiver of any
Default;
(g) waive a Default in the payment of the Accreted Value or principal
of or interest on or redemption or purchase payment with respect to any
Security (except a rescission of acceleration of the Securities by the
Holders as provided in Section 6.02 and a waiver of the payment default
that resulted from such acceleration);
(h) modify the ranking or priority of the Securities or any Guarantee
in any manner adverse to the Holders; or
(i) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with this
Indenture.
It shall not be necessary for the consent of the Holders under this Section
10.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
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After an amendment, supplement or waiver under this Section 10.02 becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
SECTION 10.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 10.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by notice to the Trustee or the Issuers received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in any of clauses (a)
through (i) of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 10.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Issuers or the Trustee
so determine, the Issuers in exchange for the Security
69
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or issue a new Security
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 10.6 Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Ten is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of the Issuers and any
Guarantors, enforceable in accordance with its terms (subject to customary
exceptions). The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
ARTICLE XI
GUARANTEE
SECTION 11.1 Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally, guarantees to
each Holder of a Security authenticated by the Trustee and to the Trustee and
its successors and assigns that: the principal of and interest on the Securities
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal and interest on any overdue interest on the Securities and all other
obligations of the Issuers to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.03. Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuers,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of an Issuer, any
right to require a proceeding first against an Issuer, protest, notice and all
demands whatsoever and covenants that the Guarantee will not be discharged
except by complete performance of the obligations contained in the Securities
and this Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to an Issuer, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to an Issuer or any
Guarantor, any amount paid by an Issuer or any Guarantor to the Trustee or such
Holder, each Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x)
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the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Six for the purpose of each Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall become due and payable by each Guarantor for the purpose of the
Holdings Guarantee and each Guarantee.
SECTION 11.2 Severability.
In case any provision of this Article Eleven shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.3 Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and the Trustee,
hereby confirm that it is the intention of all such parties that each Guarantee
not constitute a fraudulent transfer or conveyance for purposes of title 11 of
the United States Code, as amended, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar U.S. federal or state or other
applicable law. To effectuate the foregoing intention, the Holders and each
Guarantor hereby irrevocably agree that the obligations of each Guarantor under
each Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor pursuant
to Section 11.04, result in the obligations such Guarantor not constituting such
a fraudulent transfer or conveyance.
SECTION 11.4 Contribution.
In order to provide for just and equitable contribution among Guarantors,
the Guarantors agree, inter se, that in the event any payment or distribution is
made by any Guarantor (a "Funding Guarantor") under a Guarantee, such Funding
Guarantor shall be entitled to a contribution from all other Guarantors in a pro
rata amount, based on the net assets of each Guarantor (including the Funding
Guarantor), determined in accordance with GAAP, subject to Section 11.03, for
all payments, damages and expenses incurred by such Funding Guarantor in
discharging the Issuers' obligations with respect to the Securities or any other
Guarantor's obligations under a Guarantee.
SECTION 11.5 Execution of Guarantee.
To further evidence each Guarantee to the Holders, each of the Guarantors
hereby agrees to execute a guarantee to be endorsed on each Security ordered to
be authenticated and delivered by the Trustee. Each Guarantor hereby agrees that
its guarantee set forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each
71
Security a guarantee. Each such guarantee shall be signed on behalf of each
Guarantor by its Chairman of the Board, its President or one of its Vice
Presidents prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such guarantee on behalf of
such Guarantor. Such signature upon the guarantee may be manual or facsimile
signature of such officer and may be imprinted or otherwise reproduced on the
guarantee, and in case such officer who shall have signed the guarantee shall
cease to be such officer before the Security on which such guarantee is endorsed
shall have been authenticated and delivered by the Trustee or disposed of by the
Issuers, such Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed the guarantee had not ceased to be
such officer of such Guarantor.
SECTION 11.6 Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against an Issuer that arises
from the payment, performance or enforcement of such Guarantor's obligations
under a Guarantee or this Indenture, including, without limitation, any right of
subrogation, shall be subject and subordinate to, and no payment with respect to
any such claim of such Guarantor shall be made before, the payment in full in
cash of all outstanding Securities in accordance with the provisions provided
therefor in this Indenture.
ARTICLE XII
[INTENTIONALLY OMITTED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are required to
be a part of this Indenture, and shall, to the extent applicable, be governed by
such provisions. If any provision of this Indenture modifies any TIA provision
that may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 13.2 Notices.
72
Any notice or communication shall be sufficiently given if in writing and
delivered in person, by facsimile and confirmed by overnight courier, or mailed
by first-class mail addressed as follows:
73
if to GCP Capital Corp. II or Xxxxxx Packaging Holdings Company:
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx,
Senior Managing Director
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 or
(000) 000-0000
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 or
(000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Each party by notice to the others may designate additional or different
addresses for subsequent notices or communications.Any notice or communication
mailed, first-class, postage prepaid, to a Holder including any notice delivered
in connection with TIA Section 310(b), TIA Section 313(c), TIA Section 314(a)
and TIA Section 315(b), shall be mailed to him at his address as set forth on
the Security Register and shall be sufficiently given to him if so mailed within
the time
74
prescribed. To the extent required by the TIA, any notice or communication shall
also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or
refrain from taking any action under this Indenture after the date hereof, the
Issuers shall furnish to the Trustee at the request of the Trustee:(1) an
Officers' Certificate in form and substance satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and(2) an Opinion of Counsel in form and substance satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 13.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:(1) a statement that the
person making such certificate or opinion has read such covenant or
condition;(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;(3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and(4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
SECTION 13.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
75
SECTION 13.7 Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and each Guarantee without regard to principles of conflicts of law.
SECTION 13.8 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of an Issuer or any
Guarantor shall not have any liability for any obligations of an Issuer or any
Guarantor under the Securities, any Guarantee or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
All obligations under this Indenture and the Securities shall be expressly
non-recourse to the partners of the Company in their capacities as such; the
partners shall not be liable for any claim based on, in respect of or by reason
of such obligations or their creation or bear any costs or expenses in
connection with this Indenture, the issuance and sale of the Securities or any
transactions contemplated hereby or thereby, and each Securityholder by
accepting a Security waives and releases any such obligations and liability.
SECTION 13.9 Successors.
All agreements of a party to this Indenture contained in this Indenture
shall bind such party's successors. In the event of a transfer of all or
substantially all of the Company's assets and liabilities to CapCo II in
connection with an IPO Reorganization, CapCo II shall be deemed the successor to
the Company and the Company shall be discharged and released from all further
obligations under this Indenture and the Securities, subject to CapCo II's
compliance with Section 5.01(a)(ii).
SECTION 13.10 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.11 Severability.
In case any provision in this Indenture, in the Securities or in a
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
76
SECTION 13.13 Legal Holidays.
If a payment date is a not a Business Day at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no interest
shall accrue for the intervening period.
[Signature Pages Follow]
77
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings L.L.C.,
its general partner
By: /s/ Frank Nico
-------------------------------
Name: Frank Nico
Title: Assistant Treasurer and
Assistant Secretary
GPC CAPITAL CORP. II
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Assistant Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO AN ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE ISSUER AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
FOR PURPOSES OF SECTION 1271 et seq. OF THE INTERNAL
REVENUE CODE. FOR EACH $1,000 PRINCIPAL AMOUNT AT
MATURITY OF THIS SECURITY, THE ISSUE PRICE IS $595.34.
THE ISSUE DATE OF THIS SECURITY IS FEBRUARY 2, 1998 AND
THE YIELD TO MATURITY IS 10 3/4%.
XXXXXX PACKAGING HOLDINGS COMPANY
GPC CAPITAL CORP. II
10 3/4% Senior Discount Note
due 2009, Series A
CUSIP No.:[ ]
No. [ ] $[ ]
XXXXXX PACKAGING HOLDINGS COMPANY, a Pennsylvania limited partnership (the
"Company", which term includes any successor), and GPC CAPITAL CORP. II, a
Delaware corporation ("CapCo II", which term includes any successor, and,
together with the Company, the "Issuers"), for value received jointly and
severally promise to pay to [ ] or registered assigns, the principal sum of [ ]
Dollars, on January 15, 2009.
Interest Payment Dates: January 15 and July 15, commencing on July 15,
2003.
Interest Record Dates: January 1 and July 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, each Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings L.L.C.,
its general partner
By: _____________________________
Name:
Title:
A-2
By:______________________________
Name:
Title:
GPC CAPITAL CORP. II
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
Dated: [ ]
A-3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 3/4% Senior Discount Notes due 2009, Series A,
described in the within-mentioned Indenture.
Dated: [ ]
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Authorized Signatory
A-4
(REVERSE OF SECURITY)
XXXXXX PACKAGING HOLDINGS COMPANY
GPC CAPITAL CORP. II
10 3/4% Senior Discount Note
due 2009, Series A
1. Interest.
XXXXXX PACKAGING HOLDINGS COMPANY, a Pennsylvania limited partnership (the
"Company," which term shall include any successor), and GPC CAPITAL CORP. II, a
Delaware corporation ("Cap Co. II" and, together with the Company, the
"Issuers"), jointly and severally promise to pay cash interest on each Interest
Payment Date on the principal amount at maturity of this Security at the rate
per annum shown above. The principal amount at maturity of this Security will
not bear or accrue interest until January 15, 2003. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from January 15, 2003. The Issuers will pay
interest semi-annually in arrears on each Interest Payment Date, commencing July
15, 2003. Interest will be computed on the basis of a 360-day year of twelve
30-day xxxxxx.Xx addition, the Issuers shall pay interest on overdue Accreted
Value or principal and on overdue installments of interest (without regard to
any applicable grace periods) to the extent lawful from time to time on demand,
in each case at the rate borne by the Securities.
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect Accreted Value or principal payments. The Issuers shall
pay Accreted Value or principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Issuers may pay Accreted Value or principal
and interest by wire transfer of Federal funds (provided that the Paying Agent
shall have received wire instructions on or prior to the relevant Interest
Record Date), or interest by check payable in such U.S. Legal Tender. The
Issuers may deliver any such interest payment to the Paying Agent or to a Holder
at the Holder's registered address.
A-5
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as Paying Agent
and Registrar. The Issuers may change any Paying Agent or Registrar without
notice to the Holders. The Issuers may, subject to certain exceptions, act as
Registrar.
4. Indenture and Guarantees.
The Issuers issued the Securities under an Indenture, dated as of February
2, 1998 (the "Indenture"), by and among the Issuers and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. This Security is one of a duly authorized issue of Securities of the
Issuers designated as their 10 3/4% Senior Discount Notes due 2009, Series A,
limited (except as otherwise provided in the Indenture) in aggregate principal
amount at maturity to $169,000,000 which may be issued under the Indenture. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture (except as otherwise indicated in the Indenture) until such
time as the Indenture is qualified under the TIA, and thereafter as in effect on
the date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and holders of Securities are referred to the Indenture and the TIA for a
statement of them. The Securities are general unsecured obligations of the
Issuers.
5. Optional Redemption.
The Securities will be redeemable at the option of the Issuers, in whole or in
part, at any time on or after January 15, 2003, at the redemption prices
(expressed as a percentage of principal amount at maturity) set forth below,
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve- month period beginning on January 15, of the years indicated below:
Redemption
Year Price
------------------- -----------
2003 105.375%
2004 103.583%
2005 101.792%
2006 and thereafter 100.000%
6. Optional Redemption upon Equity Offerings.
In addition, at any time and from time to time on or prior to January 15,
2001, the Issuers may, at their option, use the net cash proceeds of one or more
Equity Offerings by the Company to redeem up to 40% of the aggregate principal
amount at maturity of the Securities issued at a redemption price in cash equal
to 110.750% of the Accreted Value thereof on the date of redemption; provided,
however, that at least 60% of the aggregate principal amount at maturity of the
Securities originally issued must remain outstanding
A-6
immediately after giving effect to each such redemption (excluding any
Securities held by an Issuer or any of its Affiliates). In order to effect the
foregoing redemption with the proceeds of any Equity Offering, the Issuers shall
make such redemption not more than 120 days after the consummation of any such
Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount at maturity.
Securities and portions of them the Trustee so selects shall be in amounts of
$1,000 principal amount at maturity or integral multiples thereof.If any
Security is to be redeemed in part only, the notice of redemption that relates
to such Security shall state the portion of the principal amount at maturity
thereof to be redeemed. A new Security in a principal amount at maturity equal
to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, Accreted Value or interest will cease to accrete or accrue, as the case
may be, on Securities or portions thereof called for redemption so long as the
Issuers have deposited with the Paying Agent for the Securities funds in
satisfaction of the redemption price pursuant to the Indenture and the Paying
Agent is not prohibited from paying such funds to the Holders pursuant to the
terms of the Indenture.
8. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall, within 30
days after the Change of Control Date, make an Offer to Purchase all Securities
then outstanding at a purchase price in cash equal to 101% of the Accreted Value
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the relevant Interest Record Date
to receive interest due on the relevant Interest Payment Date).
9. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make an Offer
to Purchase Securities at a purchase price equal to 100% of the Accreted Value
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the Interest Relevant Record Date
to receive interest due on the relevant Interest Payment Date) with the excess
proceeds of certain asset dispositions.
10. Denominations; Transfer; Exchange.
A-7
The Securities are in registered form, without coupons, in denominations of
$1,000 principal amount at maturity and integral multiples of $1,000 principal
amount at maturity. A Holder shall register the transfer of or exchange of
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Securities or portions thereof
selected for redemption, except the unredeemed portion of any security being
redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
12. Unclaimed Funds.
If funds for the payment of Accreted Value or principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Issuers at their written request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the Indenture
and the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount at maturity of the Securities then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount at maturity of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture and the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities or comply with any
requirements of the SEC in connection with the qualification of the Indenture
under the TIA, or make any other change that does not materially adversely
affect the rights of any Holder of a Security.
A-8
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments by Restricted Subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its assets or
to engage in transactions with affiliates or certain other related persons. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must report quarterly to the Trustee on compliance with such
limitations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount at maturity of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount at maturity of the Securities then outstanding to
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of certain continuing Defaults or
Events of Default if it determines that withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Issuers or any Guarantor shall have any liability for any obligation of the
Issuers or any Guarantor under the Securities, the Guarantee of such Guarantor
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities. All obligations under the
Indenture, the Initial Securities, the Private Exchange Securities and the
Unrestricted Securities shall be expressly non-recourse to the partners of
Holdings in their capacities as such, and by purchasing the Securities, each
holder of Securities waives any such liability of any partner of Holdings under
the Indenture, the Initial Securities, the Private Exchange Securities and the
Unrestricted Securities. The partners of Holdings shall not be liable for any
A-9
claim based on, in respect of or by reason of such obligations or their creation
or bear any costs or expenses in connection with the Indenture, the Initial
Securities, the Private Exchange Securities or the Unrestricted Securities or
any transaction contemplated thereby.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Registration Rights.
Pursuant to the Registration Rights Agreement, the Issuers will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for a 10 3/4% Senior Subordinated Note due 2009, Series B, of the
Issuers which have been registered under the Securities Act, in like principal
amount at maturity and having terms identical in all material respects to the
Initial Securities. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
23. Governing Law.
The laws of the State of New York shall govern the Indenture, this Security
and any Guarantee without regard to principles of conflicts of laws.
A-10
[FORM OF GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (as defined in the Indenture referred to in the Security upon
which this notation is endorsed) hereby unconditionally guarantees on a senior
subordinated basis (such guaranty being referred to herein as the "Guarantee")
the due and punctual payment of the Accreted Value or principal of, premium, if
any, and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue Accreted
Value or principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article Eleven of the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Guarantee therein made.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of
law.This Guarantee is subject to release upon the terms set forth in the
Indenture.
[ ]
By:______________________________
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
_______________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint ______________________________________________________
agent to transfer this Security on the books of the Issuers. The agent may
substitute another to act for him.
Dated:______________________ Signed:_______________________
(Signed exactly as name appearson the
other side of this Security)
Signature Guarantee: ___________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated:___________________ Your Signature:__________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: ________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B
[FORM OF SERIES B SECURITY]
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
FOR PURPOSES OF SECTION 1271 et seq. OF THE INTERNAL
REVENUE CODE. FOR EACH $1,000 PRINCIPAL AMOUNT AT
MATURITY OF THIS SECURITY, THE ISSUE PRICE IS $595.34.
THE ISSUE DATE OF THIS SECURITY IS FEBRUARY 2, 1998
AND THE YIELD TO MATURITY IS 10 3/4%.
XXXXXX PACKAGING HOLDINGS COMPANY
GPC CAPITAL CORP. II
10 3/4% Senior Discount Note
due 2009, Series B
CUSIP No.:[ ]
No. [ ] $[ ]
XXXXXX PACKAGING HOLDINGS COMPANY, a Pennsylvania limited partnership (the
"Company", which term includes any successor), and GPC CAPITAL CORP. II, a
Delaware corporation ("CapCo II", which term includes any successor and,
together with the Company, the "Issuers"), for value received jointly and
severally promise to pay to [ ] or registered assigns, the principal sum of [ ]
Dollars, on January 15, 2009.
Interest Payment Dates: January 15 and July 15, commencing on July 15,
2003.
Interest Record Dates: January 1 and July 1Reference is made to the further
provisions of this Security contained herein, which will for all purposes have
the same effect as if set forth at this place.
IN WITNESS WHEREOF, each Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings L.L.C.,
its general partner
By:______________________________
Name:
Title:
By:______________________________
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Name:
Title:
GPC CAPITAL CORP. II
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
GPC CAPITAL CORP. II
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
Dated: [ ]
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 3/4 Senior Discount Notes due 2009, Series B,
described in the within-mentioned Indenture.
Dated: [ ]
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Authorized Signatory
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(REVERSE OF SECURITY)
XXXXXX PACKAGING HOLDINGS COMPANY
GPC CAPITAL CORP. II
10 3/4% Senior Discount Note
due 2009, Series B
1. Interest.
XXXXXX PACKAGING HOLDINGS COMPANY, a Pennsylvania limited partnership (the
"Company," which term shall include any successor), and GPC CAPITAL CORP. I, a
Delaware corporation ("Cap Co. II" and, together with the Company, the
"Issuers"), jointly and severally promise to pay cash interest on each Interest
Payment Date on the principal amount at maturity of this Security at the rate
per annum shown above. The principal amount at maturity of this Security will
not bear or accrue interest until January 15, 2003. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from January 15, 2003. The Issuers will pay
interest semi-annually in arrears on each Interest Payment Date, commencing July
15, 2003. Interest will be computed on the basis of a 360-day year of twelve
30-day xxxxxx.Xx addition, the Issuers shall pay interest on overdue Accreted
Value or principal and on overdue installments of interest (without regard to
any applicable grace periods) to the extent lawful from time to time on demand,
in each case at the rate borne by the Securities.
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect Accreted Value or principal payments. The Issuers shall
pay Accreted Value or principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Issuers may pay Accreted Value or principal
and interest by wire transfer of Federal funds (provided that the Paying Agent
shall have received wire instructions on or prior to the relevant Interest
Record Date), or interest by check payable in such U.S. Legal Tender. The
Issuers may deliver any such interest payment to the Paying Agent or to a Holder
at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as Paying Agent
and Registrar. The Issuers may change any Paying Agent or Registrar without
notice to the Holders. The Issuers may, subject to certain exceptions, act as
Registrar.
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4. Indenture and Guarantees.
The Issuers issued the Securities under an Indenture, dated as of February
2, 1998 (the "Indenture"), by and among the Issuers and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. This Security is one of a duly authorized issue of Securities of the
Issuers designated as their 10 3/4% Senior Discount Notes due 2009, Series B,
limited (except as otherwise provided in the Indenture) in aggregate principal
amount at maturity to $169,000,000, which may be issued under the Indenture. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture (except as otherwise indicated in the Indenture) until such
time as the Indenture is qualified under the TIA, and thereafter as in effect on
the date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and holders of Securities are referred to the Indenture and the TIA for a
statement of them. The Securities are general unsecured obligations of the
Issuers.
5. Optional Redemption.
The Securities will be redeemable at the option of the Issuers, in whole or
in part, at any time on or after January 15, 2003, at the redemption prices
(expressed as a percentage of principal amount at maturity) set forth below,
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on January 15, of the years indicated below:
Redemption
Year Price
---- -----------
2003 105.375%
2004 103.583%
2005 101.792%
2006 and thereafter 100.000%
6. Optional Redemption upon Equity Offerings.
In addition, at any time and from time to time on or prior to January 15,
2001, the Issuers may, at their option, use the net cash proceeds of one or more
Equity Offerings by the Company to redeem up to 40% of the aggregate principal
amount at maturity of the Securities issued at a redemption price in cash equal
to 110.750% of the Accreted Value thereof on the date of redemption; provided,
however, that at least 60% of the aggregate principal amount at maturity of the
Securities originally issued must remain outstanding immediately after giving
effect to each such redemption (excluding any Securities held by an Issuer or
any of its Affiliates). In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Issuers shall make such redemption not more
than 120 days after the consummation of any such Equity Offering.
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7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at its registered address. The Trustee may select for redemption
portions of the principal amount of Securities that have denominations equal to
or larger than $1,000 principal amount at maturity. Securities and portions of
them the Trustee so selects shall be in amounts of $1,000 principal amount at
maturity or integral multiples thereof.If any Security is to be redeemed in part
only, the notice of redemption that relates to such Security shall state the
portion of the principal amount at maturity thereof to be redeemed. A new
Security in a principal amount at maturity equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Security. On and after the Redemption Date, Accreted Value or
interest will cease to accrete or accrue, as the case may be, on Securities or
portions thereof called for redemption so long as the Issuers have deposited
with the Paying Agent for the Securities funds in satisfaction of the redemption
price pursuant to the Indenture and the Paying Agent is not prohibited from
paying such funds to the Holders pursuant to the terms of the Indenture.
8. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Issuers shall, within 30
days after the Change of Control Date, make an Offer to Purchase all Securities
then outstanding at a purchase price in cash equal to 101% of the Accreted Value
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the relevant Interest Record Date
to receive interest due on the relevant Interest Payment Date).
9. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make an Offer
to Purchase Securities at a purchase price equal to 100% of the Accreted Value
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date
(subject to the right of Holders of record on the Interest Relevant Record Date
to receive interest due on the relevant Interest Payment Date) with the excess
proceeds of certain asset dispositions.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 principal amount at maturity and integral multiples of $1,000 principal
amount at maturity. A Holder shall register the transfer of or exchange of
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Securities or portions thereof
selected for redemption, except the unredeemed portion of any security being
redeemed in part.
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11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
12. Unclaimed Funds.
If funds for the payment of Accreted Value or principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Issuers at their written request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the Indenture
and the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount at maturity of the Securities then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount at maturity of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture and the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities or comply with any
requirements of the SEC in connection with the qualification of the Indenture
under the TIA, or make any other change that does not materially adversely
affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments by Restricted Subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its assets or
to engage in transactions with affiliates or certain other related persons. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must report quarterly to the Trustee on compliance with such
limitations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount at maturity of Securities then
outstanding may declare
B-7
all the Securities to be due and payable immediately in the manner and with the
effect provided in the Indenture. Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee is
not obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount at maturity of the Securities then outstanding to direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of certain continuing Defaults or Events of Default if it
determines that withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Issuers or any Guarantor shall have any liability for any obligation of the
Issuers, Holdings or any Guarantor under the Securities, the Guarantee of such
Guarantor or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of a Security by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities. All obligations under
the Indenture, the Initial Securities, the Private Exchange Securities and the
Unrestricted Securities shall be expressly non-recourse to the partners of
Holdings in their capacities as such, and by purchasing the Securities, each
holder of Securities waives any such liability of any partner of Holdings under
the Indenture, the Initial Securities, the Private Exchange Securities and the
Unrestricted Securities. The partners of Holdings shall not be liable for any
claim based on, in respect of or by reason of such obligations or their creation
or bear any costs or expenses in connection with the Indenture, the Initial
Securities, the Private Exchange Securities or the Unrestricted Securities or
any transaction contemplated thereby.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
B-8
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Governing Law.
The laws of the State of New York shall govern the Indenture, this Security
and any Guarantee without regard to principles of conflicts of laws.
B-9
[FORM OF GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (as defined in the Indenture referred to in the Security upon
which this notation is endorsed) hereby unconditionally guarantees on a senior
subordinated basis (such guaranty being referred to herein as the "Guarantee")
the due and punctual payment of the principal of, premium, if any, and interest
on the Securities, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal, premium and interest
on the Securities, and the due and punctual performance of all other obligations
of the Issuers to the Holders or the Trustee, all in accordance with the terms
set forth in Article Eleven of the Indenture.
The obligations of the Guarantor to the Holders of Securities and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Eleven of the Indenture, and reference is hereby made to such Indenture
for the precise terms of the Guarantee therein made.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of
law.This Guarantee is subject to release upon the terms set forth in the
Indenture.
[ ]
By:_________________________
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________________________
agent to transfer this Security on the books of the Issuers. The agent may
substitute another to act for him.
Dated:__________________ Signed: ________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: ________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:Section 4.05 [ ] Section 4.14 [ ]
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated:___________________ Your Signature:
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:___________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 10 3/4% Senior Discount Notes due 2009
(the "Securities") of Xxxxxx Packaging Holdings
Company and GPC Capital Corp. II
This Certificate relates to $_______ principal amount at maturity of
Securities held in the form of* ___ a beneficial interest in a Global Security
or* _______ Physical Securities by ______ (the "Transferor").
The Transferor:*
|_| has requested by written order that the Registrar deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Physical Security or Physical Securities in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or register
the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Securities does not require Registration under the Securities
Act of 1933, as amended (the "Act"), because*:
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
|_| Such Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Act), in reliance on Rule 144A.
|_| Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
Exhibit E to the Indenture.
|_| Such Security is being transferred in reliance on Rule 144 under the
Act.
|_| Such Security is being transferred in reliance on and in compliance
with an exemption from the Registration requirements of the Act other than Rule
144A or Rule 144 under the Act to a person other than an institutional
"accredited investor." [An Opinion of
D-1
Counsel to the effect that such transfer does not require Registration under the
Securities Act accompanies this certification.]
_________________________________
[INSERT NAME OF TRANSFEROR]
By: _____________________________
[Authorized Signatory]
Date:_____________
*Check applicable box.
D-2
EXHIBIT E
Form of Transferee Letter of Representation
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Dear Sirs:
This certificate is delivered to request a transfer of $________ principal
amount of the 10 3/4% Senior Discount Notes due 2009 (the "Notes") of Xxxxxx
Packaging Holdings Company and GPC Capital Corp. II (the "Issuers"). Upon
transfer, the Notes would be registered in the name of the new beneficial owner
as follows:
Name:____________________________
Address:_________________________
TaxpayerID Number:_______________
The undersigned represents and warrants to you that:1. We are an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933 (the "Securities Act")) purchasing for our
own account or for the account of such an institutional "accredited investor" at
least $250,000 principal amount at maturity of the Notes, and we are acquiring
the Notes not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risk of our investment in the Notes and we invest in or purchase
securities similar to the Notes in the normal course of our business. We and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is two years after the later of the date of
original issue and the last date on which an Issuer or any affiliate of an
Issuer was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to an Issuer, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act, that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Notes of
$250,000 or
E-1
(e) pursuant to any other available exemption from the registration requirements
of the Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Notes is proposed to be made pursuant to
clause (d) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Issuer and the Trustee, which shall provide, among other
things, that the transferee is an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it
is acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Issuer and
the Trustee reserve the right prior to any offer, sale or other transfer prior
to the Resale Restriction Termination Date of the Notes pursuant to clause (d)
or (e) above to require the delivery of an opinion of counsel, certificates
and/or other information satisfactory to the Issuer and the Trustee.
Dated: __________________________ TRANSFEREE: _____________________
By:
E-2
Counsel to the effect that such transfer does not require Registration under the
Securities Act accompanies this certification.
[INSERT NAME OF TRANSFEROR]
By:
--------------------------
[Authorized Signatory]
Date:
---------------------------
* check applicable box.
