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EXHIBIT T3C
RBX CORPORATION
AND
THE SUBSIDIARY GUARANTORS
$25,000,000
12% SENIOR SECURED NOTES
DUE __________, 2006
-------------
INDENTURE
DATED AS OF ___________, 2001
-------------
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- -----------------
310(a)(1).................................................................................7.10
(a)(2) ...................................................................................7.10
(a)(3)....................................................................................N.A.
(a)(4)....................................................................................N.A.
(a)(5)....................................................................................7.10
(b).......................................................................................7.10
(c).......................................................................................N.A.
311(a)....................................................................................7.11
(b).......................................................................................7.11
(c).......................................................................................N.A.
312(a)....................................................................................2.05
(b)......................................................................................13.03
(c)......................................................................................13.03
313(a)....................................................................................7.06
(b).......................................................................................N.A.
(b)(1)....................................................................................N.A.
(b)(2)..............................................................................7.06; 7.07
(c)................................................................................7.06; 13.02
(d).......................................................................................7.06
314(a)(1).................................................................................N.A.
(a)(2)....................................................................................N.A.
(a)(3)....................................................................................N.A.
(a)(4)...................................................................................13.05
(b)(1)................................................................................10.02(b)
(b)(2)................................................................................10.02(d)
(c).......................................................................................N.A.
(d).............10.03(c); 10.05(a), (b)(iii), (d)(iii), (e)(iii); 11.02(b); 11.03(b); 11.04(c)
(e)......................................................................................13.05
(f).......................................................................................N.A.
315(a)....................................................................................N.A.
(b).......................................................................................N.A.
(c).......................................................................................N.A.
(d).......................................................................................N.A.
(e).......................................................................................N.A.
316(a)....................................................................................N.A.
(b).......................................................................................N.A.
(c)......................................................................................13.06
317.......................................................................................N.A.
318(a)....................................................................................N.A.
(b).......................................................................................N.A.
(c)......................................................................................13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.........................................1
Section 1.01 Definitions............................................................1
Section 1.02 Other Definitions.....................................................16
Section 1.03 Incorporation by Reference of Trust Indenture Act.....................16
Section 1.04 Rules of Construction.................................................17
ARTICLE 2 THE NOTES.........................................................................17
Section 2.01 Form and Dating.......................................................17
Section 2.02 Execution and Authentication..........................................18
Section 2.03 Registrar and Paying Agent............................................19
Section 2.04 Paying Agent to Hold Money in Trust...................................19
Section 2.05 Holder Lists..........................................................19
Section 2.06 Transfer and Exchange.................................................20
Section 2.07 Replacement Notes.....................................................24
Section 2.08 Outstanding Notes.....................................................25
Section 2.09 Treasury Notes........................................................25
Section 2.10 Temporary Notes.......................................................25
Section 2.11 Cancellation..........................................................25
Section 2.12 Defaulted Interest....................................................26
ARTICLE 3 REDEMPTION........................................................................26
Section 3.01 Notices to Trustee....................................................26
Section 3.02 Selection of Notes to Be Redeemed.....................................26
Section 3.03 Notice of Redemption..................................................27
Section 3.04 Effect of Notice of Redemption........................................27
Section 3.05 Deposit of Redemption Price...........................................28
Section 3.06 Notes Redeemed in Part................................................28
Section 3.07 Optional Redemption...................................................28
Section 3.08 No Mandatory Redemption...............................................28
ARTICLE 4 COVENANTS.........................................................................28
Section 4.01 Payment of Notes......................................................28
Section 4.02 Maintenance of Office or Agency.......................................30
Section 4.03 Reports...............................................................30
Section 4.04 Compliance Certificate................................................30
Section 4.05 Taxes.................................................................31
Section 4.06 Stay, Extension and Usury Laws........................................31
Section 4.07 Change of Control.....................................................32
Section 4.08 Asset Sales...........................................................33
Section 4.09 Restricted Payments...................................................36
Section 4.10 Incurrence of Indebtedness and Issuance of Preferred Stock............38
Section 4.11 Liens.................................................................39
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Section 4.12 Dividend and Other Payment Restrictions Affecting Subsidiaries........40
Section 4.13 Transactions with Affiliates..........................................40
Section 4.14 Additional Subsidiary Guarantees......................................41
Section 4.15 Impairment of Security Interests......................................41
Section 4.16 Payments for Consent..................................................42
Section 4.17 Corporate Existence...................................................42
ARTICLE 5 SUCCESSORS........................................................................42
Section 5.01 Merger, Consolidation or Sale of Assets...............................42
Section 5.02 Successor Corporation Substituted.....................................43
ARTICLE 6 DEFAULTS AND REMEDIES.............................................................43
Section 6.01 Events of Default.....................................................43
Section 6.02 Acceleration..........................................................45
Section 6.03 Other Remedies........................................................46
Section 6.04 Waiver of Past Defaults...............................................46
Section 6.05 Control by Majority...................................................46
Section 6.06 Limitation on Suits...................................................47
Section 6.07 Rights of Holders of Notes to Receive Payment.........................47
Section 6.08 Collection Suit by Trustee............................................47
Section 6.09 Trustee May File Proofs of Claim......................................48
Section 6.10 Priorities............................................................48
Section 6.11 Undertaking for Costs.................................................48
ARTICLE 7 TRUSTEE...........................................................................49
Section 7.01 Duties of Trustee.....................................................49
Section 7.02 Rights of Trustee.....................................................50
Section 7.03 Individual Rights of Trustee..........................................51
Section 7.04 Trustee's Disclaimer..................................................51
Section 7.05 Notice of Defaults....................................................51
Section 7.06 Reports by Trustee to Holders of the Notes............................51
Section 7.07 Compensation and Indemnity............................................52
Section 7.08 Replacement of Trustee................................................53
Section 7.09 Successor Trustee by Xxxxxx, etc......................................54
Section 7.10 Eligibility; Disqualification.........................................54
Section 7.11 Preferential Collection of Claims Against Company.....................54
Section 7.12 Intercreditor Agreement...............................................54
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE..........................................54
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..............54
Section 8.02 Legal Defeasance and Discharge........................................54
Section 8.03 Covenant Defeasance...................................................55
Section 8.04 Conditions to Legal or Covenant Defeasance............................55
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions..............................................57
Section 8.06 Repayment to Company..................................................57
Section 8.07 Reinstatement.........................................................58
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ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER..................................................58
Section 9.01 Without Consent of Holders of Notes...................................58
Section 9.02 With Consent of Holders of Notes......................................59
Section 9.03 Compliance with Trust Indenture Act...................................60
Section 9.04 Revocation and Effect of Consents.....................................60
Section 9.05 Notation on or Exchange of Notes......................................61
Section 9.06 Trustee to Sign Amendments, etc.......................................61
ARTICLE 10 COLLATERAL.......................................................................61
Section 10.01 Collateral Documents; Additional Collateral...........................61
Section 10.02 Recording, Registration and Opinions..................................63
Section 10.03 Release of Collateral.................................................65
Section 10.04 Possession and Use of Collateral......................................66
Section 10.05 Specified Releases of Collateral......................................66
Section 10.06 Disposition of Collateral Without Release.............................69
Section 10.07 Form and Sufficiency of Release.......................................70
Section 10.08 Purchaser Protected...................................................70
Section 10.09 Authorization of Actions To Be Taken by the Trustee Under the
Collateral Documents..................................................71
Section 10.10 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents..................................................71
ARTICLE 11 APPLICATION OF TRUST MONIES......................................................71
Section 11.01 Collateral Account....................................................71
Section 11.02 Withdrawal of Insurance Proceeds and Condemnation Awards..............72
Section 11.03 Withdrawal of Net Cash Proceeds to Fund an Asset Sale Offer...........74
Section 11.04 Withdrawal of Trust Monies for Investment in Replacement Assets.......74
Section 11.05 Investment of Trust Monies............................................75
ARTICLE 12 SUBSIDIARY GUARANTEES............................................................76
Section 12.01 Subsidiary Guarantees.................................................76
Section 12.02 Execution and Delivery of Subsidiary Guarantees.......................77
Section 12.03 Subsidiary Guarantors May Consolidate, etc., on Certain Terms.........78
Section 12.04 Releases Following Sale of Assets.....................................79
Section 12.05 Limitation of Subsidiary Guarantor's Liability........................80
Section 12.06 Application of Certain Terms and Provisions to the
Subsidiary Guarantors.................................................80
ARTICLE 13 MISCELLANEOUS....................................................................80
Section 13.01 Trust Indenture Act Controls..........................................80
Section 13.02 Notices...............................................................81
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.........82
Section 13.04 Certificate and Opinion as to Conditions Precedent....................82
Section 13.05 Statements Required in Certificate or Opinion.........................82
Section 13.06 Rules by Trustee and Agents...........................................82
Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders..........................................................83
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Section 13.08 Governing Law.........................................................83
Section 13.09 No Adverse Interpretation of Other Agreements.........................83
Section 13.10 Successors............................................................83
Section 13.11 Severability..........................................................84
Section 13.12 Counterpart Originals.................................................84
Section 13.13 Table of Contents, Headings, etc......................................84
Section 13.14 Intercreditor Agreement...............................................84
ARTICLE 14 SATISFACTION AND DISCHARGE.......................................................84
Section 14.01 Satisfaction and Discharge of Indenture...............................84
Section 14.02 Application of Trust Money............................................85
Exhibits and Schedules
Exhibit A Form of Note and Notation of Subsidiary Guarantee
Exhibit B Form of Supplemental Indenture
Exhibit C Security Agreements
Exhibit D Mortgages and Deeds of Trust
Exhibit E Form of Intercreditor Agreement
Schedule 1.01(a) Existing Indebtedness
Schedule 1.01(b) Existing Permitted Liens
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INDENTURE, dated as of ___________, 2001, among RBX Corporation,
a Delaware corporation (the "COMPANY"), the Subsidiary Guarantors (as defined)
and State Street Bank and Trust Company, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the 12% Senior Secured Notes
due 2006 issued pursuant to this Indenture:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS
"ACCOUNT DEBTOR" means any Person who is or who may become
obligated to the Company or any Subsidiary under, with respect to, or on account
of, an Account.
"ACCOUNTS" means any and all rights, title and interest of the
Company and its Subsidiaries to payment for goods and services sold or leased,
including any such right evidenced by chattel paper, whether due or to become
due, whether or not it has been earned by performance, and whether now or
hereafter acquired or arising in the future, including Accounts Receivable from
Affiliates of the Company and its Subsidiaries.
"ACCOUNTS RECEIVABLE" means all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired.
"ACCRUED BANKRUPTCY INTEREST" means, with respect to any
Indebtedness, all interest accruing thereon after the filing of a petition by or
against the Company or any of its Subsidiaries under any Bankruptcy Law, in
accordance with and at the rate (including any rate applicable upon any default
or event of default, to the extent lawful) specified in the documents evidencing
or governing such Indebtedness, whether or not the claim for such interest is
allowed as a claim after such filing in any proceeding under such Bankruptcy
Law.
"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 became a 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
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"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, will 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
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securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the voting securities of a Person shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition that does not constitute a Restricted Payment or an Investment by
such Person of any of its non-cash assets (including, without limitation, by way
of a sale and leaseback and including the issuance, sale or other transfer of
any of the capital stock of any Subsidiary of such Person) other than to the
Company or to any of its Wholly Owned Subsidiaries that is a Subsidiary
Guarantor (including the receipt of proceeds of insurance paid on account of the
loss of or damage to any asset and awards of compensation for any asset taken by
condemnation, eminent domain or similar proceeding, and including the receipt of
proceeds of business interruption insurance); and (ii) the issuance of Equity
Interests in any Subsidiaries or the sale of any Equity Interests in any
Subsidiaries, in each case, in one or a series of related transactions,
provided, that notwithstanding the foregoing, the term "ASSET SALE" shall not
include: (a) the sale, lease, conveyance, disposition or other transfer of all
or substantially all of the assets of the Company, as permitted pursuant to
Section 5.01; (b) the sale or lease of equipment, inventory, accounts receivable
or other assets in the ordinary course of business consistent with past practice
and to the extent that such sales or leases are not part of the sale of the
business in which such equipment was used or in which such inventory or accounts
receivable arose; (c) an issuance of Equity Interests by a Wholly Owned
Subsidiary to the Company or to another Wholly Owned Subsidiary that is a
Subsidiary Guarantor; (d) the grant in the ordinary course of business of any
non-exclusive license of patents, trademarks, registrations therefor and other
similar intellectual property; or (e) Permitted Investments.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that, in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition.
"BOARD OF DIRECTORS" means the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a resolution duly adopted by the Board
of Directors of the Company.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL 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 on a balance sheet in
accordance with GAAP.
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"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, partnership
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 (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities not more than twelve
months from the date of acquisition, (b) U.S. dollar denominated time deposits,
certificates of deposit, Eurodollar time deposits or Eurodollar certificates of
deposit of (i) any domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 or (ii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being an
"APPROVED LENDER"), in each case with maturities of not more than twelve months
from the date of acquisition, (c) commercial paper and variable or fixed rate
notes issued by any Approved Lender (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated
A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent
thereof) or better by Moody's and maturing within twelve months of the date of
acquisition, (d) repurchase agreements with a bank or trust company or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which the Company shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of
repurchase obligations, and (e) interests in money market mutual funds which
invest solely in assets or securities of the type described in subparagraphs
(a), (b), (c) or (d) hereof.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(i) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of the
properties or assets of the Company and its Subsidiaries taken as a
whole to any "person" or "group" (as such terms are used in Section
13(d)(3) and 14(d) of the Exchange Act);
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(iii) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is
that any "person" or "group" (as defined above), becomes the Beneficial
Owner, directly or indirectly, of more than 40% of the Capital Stock of
the Company, measured by voting power rather than number of shares; or
(iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (together with any new
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directors whose election by the Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote
of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously approved) cease to constitute a
majority of the directors then in office.
"COLLATERAL" means any assets of the Company or any Subsidiary
Guarantor defined as "COLLATERAL," "MORTGAGED PROPERTY," "TRUST PROPERTY" or the
like in any of the Collateral Documents.
"COLLATERAL ACCOUNT" means the collateral account established
pursuant to Section 11.01 of this Indenture.
"COLLATERAL DOCUMENTS" mean, collectively, the Mortgages and
Deeds of Trust, the Security Agreements, the Intercreditor Agreement and all
other pledges, mortgages, deeds of trust, security agreements, collateral
agreements, control agreements, assignments, instruments, financing statements,
filings and other documents that grant, evidence, set forth, provide notice of,
govern or limit the Lien in favor of the Trustee (or a collateral agent for the
benefit of the Trustee) in the Collateral, and all amendments thereto from time
to time.
"COLLATERAL PERMITTED LIENS" means Liens of the types described
in clauses (i), (ii) to the extent permitted under the Intercreditor Agreement,
(iv), (v), (viii), (x), (xiii), (xiv) with respect to Collateral acquired after
the Issue Date, (xvi) and (xix) of the definition of the term "Permitted Liens."
"CONSOLIDATED EBITDA" means, with respect to the Company and its
Subsidiaries for any period, subject to Section 4.12(e) hereof, the sum of,
without duplication, (i) the Consolidated Net Income for such period, plus (ii)
the Fixed Charges for such period, plus (iii) provision for taxes based on
income or profits for such period (to the extent such taxes were included in
computing Consolidated Net Income for such period), plus (iv) consolidated
depreciation, amortization and other non-cash charges of the Company and its
Subsidiaries required to be reflected as expenses on the books and records of
the Company (to the extent such expenses were included in computing Consolidated
Net Income for such period), minus (v) cash payments with respect to any
non-recurring, non-cash charges previously added back pursuant to clause (iv),
and (vi) excluding the impact of foreign currency translations. Notwithstanding
the foregoing, the Fixed Charges of, the provision for taxes based on the income
or profits of, and the depreciation and amortization and other non-cash charges
of, a Subsidiary of a Person shall be added to Consolidated Net Income to
compute Consolidated EBITDA only to the extent (and in the same proportion) that
the Net Income of such Subsidiary was included in calculating the Consolidated
Net Income of such Person and only if a corresponding amount would be permitted
at the date of determination to be dividended to the Company by such Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary or
its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a
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consolidated basis, determined in accordance with GAAP; provided that (i) the
Net Income (but not loss) of any Person that is not a 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 paid in cash to the referent
Person or a Wholly Owned Subsidiary thereof that is a Subsidiary Guarantor, (ii)
the Net Income of any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that 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 operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded, (iv) the cumulative effect of a
change in accounting principles shall be excluded, and (v) all other
extraordinary gains and extraordinary losses shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of
any date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to the Issue Date in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (y)
all Investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address
of the Trustee specified in Section 13.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"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.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Increases of, and Exchanges of
Interests in, the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Global Notes, the Person
specified in Section 2.03 hereof as the Depositary with respect to the Notes,
and any and all successors thereto appointed as depositary hereunder and having
become such pursuant to the applicable provision of this Indenture.
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"DISQUALIFIED STOCK" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it is
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, on or prior to the date
that is 91 days after the date on which the Notes mature.
"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).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXISTING INDEBTEDNESS" means the Indebtedness of the Company
(other than Indebtedness under the New Credit Agreement) in existence on the
Issue Date, as listed on Schedule 1.01(a) attached hereto, until such amounts
are repaid.
"FIXED CHARGES" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of such
Person and its Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations), and (ii) the consolidated interest expense of such
Person and its Subsidiaries that was capitalized during such period, and (iii)
any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon), and (iv) the product of (a) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person payable to a party other than the
Company or a Wholly Owned Subsidiary, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, on a consolidated basis and in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person
for any period, the ratio of the Consolidated EBITDA of such Person and its
Subsidiaries for such period to the Fixed Charges of such Person and its
Subsidiaries for such period. In the event that the Company or any of its
Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness (other than
revolving credit borrowings) or issues or redeems preferred stock or
Disqualified Stock subsequent to the commencement of the four-quarter reference
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which 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 or Disqualified Stock, as if the same had occurred
at the beginning of the applicable four-quarter reference period. For purposes
of making the computation referred to above, (i) acquisitions that have been
made by the Company or any of its Subsidiaries, including
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through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period, and (ii) the
Consolidated EBITDA attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, and (iii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges shall
not be obligations of the referent Person or any of its Subsidiaries following
the Calculation Date.
"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 date of this Indenture.
"GENERAL INTANGIBLES" means all choses in action and causes of
action and all other assignable intangible personal property of the Company or
any of its Subsidiaries of every kind and nature now owned or hereafter acquired
by the Company or any of its Subsidiaries, including corporate or other business
records, indemnification claims, contract rights, any letter of credit,
guarantee, claim, security interest or other security held by or granted to the
Company or any of its Subsidiaries to secure payment by an Account Debtor of any
of the Accounts Receivable.
"GLOBAL NOTE" means a global note in the form of Exhibit A hereto
bearing the Global Note Legend and that has the "Schedule of Increases of, and
Exchanges of Interests in, the Global Note" attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"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.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
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"HOLDER" means a Person in whose name a Note is registered on the
Registrar's books.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an ordinary course of
business accrued expense or ordinary course of business trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INDEPENDENT APPRAISER" means a person who in the course of its
business appraises property and (i) where real property is involved, who is a
member in good standing of the American Institute of Real Estate Appraisers,
recognized and licensed to do business in the jurisdiction where the applicable
real property is situated, (ii) who does not have a direct or indirect financial
interest in the Company and (iii) who, in the judgment of the Board of Directors
of the Company, is otherwise independent and qualified to perform the tasks for
which it is engaged.
"INDEPENDENT FINANCIAL ADVISOR" means a firm (a) which does not,
and whose directors, officers and employees or Affiliates do not, have a direct
or indirect financial interest in the Company (it being understood that
securities of the Company acquired in the ordinary course of trading operations
shall not be deemed to give rise to such direct or indirect financial interest
in the Company) and (b) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"INTERCREDITOR AGREEMENT" means the Intercreditor and Collateral
Agency Agreement, dated as of the Issue Date, between the Trustee and Congress
Financial Corporation, individually, as agent for the lenders under the New
Credit Agreement, and in its capacity as collateral agent acting for and on
behalf of such lenders and the Trustee, substantially in the form attached as
Exhibit E hereto, as such may be amended, supplemented or replaced from time to
time.
"INTEREST PAYMENT DATE" means each interest payment date as
specified in the form of Note attached hereto as Exhibit A.
"INVENTORY" means all goods of the Company or any of its
Subsidiaries, whether now owned or hereafter acquired, held for sale or lease,
or furnished or to be furnished by the
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Company or any of its Subsidiaries under contracts of service, or consumed in
the Company's or its Subsidiaries' business, including raw materials,
intermediates, work in process, packaging materials, finished goods,
semi-finished inventory, scrap inventory, manufacturing supplies and spare
parts, and all such goods that have been returned to or repossessed by or on
behalf of the Company or any of its Subsidiaries.
"INVESTMENTS" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding 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 or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided that an acquisition of assets, Equity Interests or other securities by
the Company for consideration consisting of common equity securities of the
Company or any direct or indirect parent of the Company shall not be deemed to
be an Investment.
"ISSUE DATE" means the closing date for the original issuance of
Notes under this Indenture.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or Hartford, Connecticut or at a
place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
"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).
"MOODY'S" means Xxxxx'x Investor Services.
"MORTGAGES AND DEED OF TRUST" means the mortgages and deeds of
trust listed on Exhibit D to this Indenture, or such other mortgages and deeds
of trust in form and substance satisfactory to the Trustee.
"NET AWARD" means all proceeds, awards or payments for any
Collateral which is taken by eminent domain, expropriation or similar
governmental actions or sold pursuant to the exercise by the United States of
America or any State, municipality, province or other governmental authority of
any right which it may have to purchase, or to designate a purchaser or to order
a sale of, all or any part of the Collateral, in each case less collection
expenses.
"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, excluding, however, (i) any
gain (but not loss), together with any related
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provision for taxes on such gain (but not loss), realized in connection with (a)
any Asset Sale (including, without limitation, dispositions pursuant to sale and
leaseback transactions) or (b) the disposition of any securities by such Person
or any of its Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Subsidiaries and (ii) any extraordinary or nonrecurring
gain (but not loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"NET INSURANCE PROCEEDS" means the insurance proceeds (excluding
liability insurance proceeds payable to the Trustee for any loss, liability or
expense incurred by it) in respect of damage to, or the loss, destruction or
condemnation of, all or any portion of the Collateral, less collection costs.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
(other than the Notes and the Subsidiary Guarantees) secured by a Lien on the
asset or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP (but upon extinguishment or reduction of such reserve, such
amount shall constitute Net Proceeds), but, in each case, excluding costs,
expenses and other amounts paid to an Affiliate of the Company.
"NEW CREDIT AGREEMENT" means that certain Amended and Restated
Loan Agreement, dated as of the Issue Date, by and among RBX Industries, Inc.,
the Company, and Congress Financial Corporation, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced, restated or refinanced from time to time and including any such
agreements, documents or instruments with any lender or group of lenders that at
any time succeed to or refinance, replace or substitute for all or any portion
of the New Senior Debt.
"NEW SENIOR DEBT" means Indebtedness in an aggregate principal
amount not to exceed $45,000,000 at any one time outstanding under the New
Credit Agreement as such agreement may be amended, restated, supplemented or
otherwise modified or replaced, in whole or in part, from time to time
hereafter, together with any refunding or replacement of such Indebtedness,
including with any other lender or group of lenders.
"NOTE CUSTODIAN" means the Trustee, as custodian with respect to
the Global Notes, or any successor entity thereto.
"NOTES" means all 12% Senior Secured Notes due 2006 issued
pursuant to this Indenture (including, without limitation, any Additional
Notes), all of which shall be in the form of Exhibit A attached hereto.
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"OBLIGATIONS" means, when used in connection with any
Indebtedness or with reference to the documents evidencing or entered into with
respect to any Indebtedness (including, in the case of the Notes, the Collateral
Documents), any principal, interest (including, in the case of the Notes,
Accrued Bankruptcy Interest), penalties, premiums, fees, costs, expenses
(including attorney's fees), indemnifications, reimbursement obligations,
damages (including liquidated damages), liabilities (including liabilities for
compensation and contribution obligations and for breach of representations or
warranties) and other amounts (including obligations arising upon the exercise
by any Person of rights of redemption or rescission) payable at any time, and
any other obligations required to be performed at any time, whether now or in
the future, under the documentation governing such Indebtedness or entered into
in connection with or with respect to such Indebtedness or such documentation.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, a Person who
has an account with the Depositary.
"PERMITTED INVESTMENTS" means (a) any Investments in the Company
or in a Wholly Owned Subsidiary of the Company that is a Subsidiary Guarantor
and that is engaged in the same or a similar line of business as the Company and
its Subsidiaries were engaged in on the Issue Date and reasonable extensions or
expansions thereof; (b) any Investments in Cash Equivalents; (c) Investments by
the Company or any Subsidiary of the Company in a Person if as a result of such
Investment (i) such Person becomes a Wholly Owned Subsidiary of the Company that
is a Subsidiary Guarantor and that is engaged in the same or a similar line of
business as the Company and its Subsidiaries were engaged in on the Issue Date
and reasonable extensions or expansions thereof or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Wholly Owned
Subsidiary of the Company that is a Subsidiary Guarantor and that is engaged in
the same or a similar line of business as the Company and its Subsidiaries were
engaged in on the Issue Date and reasonable extensions or expansions thereof;
(d) Investments made as a result of the receipt of non-cash consideration from
an Asset Sale that was made pursuant to and in compliance with Section 4.08; (e)
Investments outstanding as of the Issue Date; and (f)(i) other Investments that
do not exceed $5,000,000 in the aggregate at any time outstanding, and (ii) if
the amount specified in clause (f)(i) above has been fully utilized, other
Investments (in addition to those permitted by clause (f)(i) above) that (A) are
each individually
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approved by the Board of Directors as evidenced by a Board Resolution delivered
to the Trustee contemporaneously with such Investment and (B) in the aggregate
do not exceed $5,000,000 at any time outstanding.
"PERMITTED LIENS" means (i) Liens securing obligations under this
Indenture, the Notes, the Subsidiary Guarantees and the Collateral Documents;
(ii) Liens securing New Senior Debt in an aggregate principal amount at any time
outstanding not to exceed $45,000,000; (iii) Liens in favor of the Company or
any Subsidiary Guarantor; (iv) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Subsidiary of the Company in accordance with the provisions of this Indenture;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company; (v) Liens on property
existing at the time of acquisition thereof by the Company or any Subsidiary of
the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (vi) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vii)
Liens existing on the Issue Date and listed on Schedule 1.01(b) hereto; (viii)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (ix) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, or other similar Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings diligently conducted; (x)
Liens of landlords or of mortgagees of landlords arising by operation of law,
provided that the rental payments secured thereby are not yet due and payable;
(xi) Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that do not exceed
$5,000,000 at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Subsidiary; (xii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security; (xiii) easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the business of the
Company or any of its Subsidiaries; (xiv) Purchase Money Liens and Capital Lease
Obligations (including extensions and renewals thereof) securing Indebtedness
incurred pursuant to (A) the first paragraph of Section 4.10 hereof or (B)
clause (iv) of the second paragraph of Section 4.10 hereof; (xv) Liens securing
reimbursement obligations with respect to letters of credit which encumber only
documents and other property relating to such letters of credit and the products
and proceeds thereof; (xvi) judgment and attachment Liens not giving rise to an
Event of Default; (xvii) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements;
(xviii) Liens arising out of consignment or similar arrangements for the sale of
goods; and (xix) any interest or title of a lessor in property subject to any
operating lease.
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"PERMITTED REFINANCING DEBT" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Subsidiaries; provided that: (i) the
principal amount of such Permitted Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes or the Subsidiary Guarantees, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of the
Notes, and is subordinated in right of payment to the Notes or such Subsidiary
Guarantees on terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred either by the Company or by the Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PURCHASE MONEY LIEN" means a Lien granted on an asset or
property to secure a Purchase Money Obligation permitted to be incurred under
this Indenture and incurred solely to finance the purchase, or the cost of
construction or improvement, of such asset or property; provided, however, that
such Lien encumbers only such asset or property and is granted within 180 days
of such acquisition.
"PURCHASE MONEY OBLIGATIONS" of any Person means any obligations
of such Person to any seller or any other Person incurred or assumed to finance
the purchase, or the cost of construction or improvement, of real or personal
property to be used in the business of such Person or any of its Subsidiaries in
an amount that is not more than 100% of the cost, or fair market value, as
appropriate, of such property, and incurred within 180 days after the date of
such acquisition (excluding accounts payable to trade creditors incurred in the
ordinary course of business).
"RECORD DATE" means each record date as specified in the form of
Note attached hereto as Exhibit A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company, the Subsidiary
Guarantors and the holders of beneficial interests in the Restricted Global
Note, as such agreement may be amended, modified or supplemented from time to
time.
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"REORGANIZATION PLAN" means the Second Amended Joint Plan of
Reorganization of RBX Group, Inc. and its Subsidiaries, as confirmed by the
United States Bankruptcy Court, Western District of Virginia, including all
exhibits and other attachments thereto.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Transfer Restriction Legend.
"RESTRICTED GLOBAL NOTE" means the Global Note bearing the
Transfer Restriction Legend.
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENTS" means the security agreements listed on
Exhibit C to this Indenture, or such other security agreements in form and
substance satisfactory to the Trustee.
"SUBSIDIARY" means, with respect to any Person, (i) any
corporation, association or other business entity 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 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 (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTEES" means the Guarantees of the Notes made by
Subsidiary Guarantors pursuant to Article 12 hereof or a supplemental indenture
in the form attached hereto as Exhibit B.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Company that
makes a Subsidiary Guarantee in accordance with the provisions of this
Indenture, and its successors and assigns.
"S&P" means Standard & Poor's Ratings Services.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRANSFER RESTRICTED NOTES" means Notes that bear the Transfer
Restriction Legend.
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"TRANSFER RESTRICTION LEGEND" means the legend set forth in
Section 2.06(g)(i) to be placed on certain Notes issued under this Indenture
where required by the provisions of this Indenture.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"TRUST MONIES" means, subject to the Intercreditor Agreement, all
cash and Cash Equivalents received by the Trustee (i) upon the release of
Collateral from the Lien of this Indenture or the Collateral Documents,
including all proceeds of Collateral and all moneys received in respect of the
principal of all purchase money, governmental and other obligations; (ii) as Net
Insurance Proceeds; (iii) pursuant to the Collateral Documents; (iv) as proceeds
of any sale or other disposition of all or any part of the Collateral by or on
behalf of the Trustee or any collection, recovery, receipt, appropriation or
other realization of or from all or any part of the Collateral pursuant to this
Indenture or any of the Collateral Documents or otherwise; (v) which constitute
proceeds from any transaction which results in a Subsidiary Guarantor being
released from its Subsidiary Guarantee pursuant to this Indenture; or (vi) for
application as provided in the relevant provisions of this Indenture or any
Collateral Document or which disposition is not otherwise specifically provided
for in this Indenture or in any Collateral Document; provided, however, that
Trust Monies shall in no event include any property deposited with the Trustee
for any redemption, legal defeasance or covenant defeasance of Notes, for the
satisfaction and discharge of this Indenture or to pay the purchase price of
Notes pursuant to a Change of Control Offer.
"UNRESTRICTED DEFINITIVE NOTE" means a Definitive Note that does
not bear the Transfer Restriction Legend.
"UNRESTRICTED GLOBAL NOTE" means the Global Note that does not
bear the Transfer Restriction Legend.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that shall elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of
such Person all 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.
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SECTION 1.02 OTHER DEFINITIONS
Term Defined in Section
---- ------------------
"Additional Notes" 4.01
"Affiliate Transaction" 4.13
"After-Acquired Property" 10.01
"Asset Sale Offer" 4.08
"Asset Sale Offer Period" 4.08
"Asset Sale Offer Amount" 4.08
"Asset Sale Purchase Date" 4.08
"Authentication Order" 2.02
"Available Amount" 4.08
"Bankruptcy Law" 6.01
"Benefitted Party" 12.01
"Calculation Date" 1.01 ("Fixed Charge
Coverage Ratio")
"Change of Control Offer" 4.07
"Change of Control Offer Period" 4.07
"Change of Control Payment" 4.07
"Change of Control Purchase Date" 4.07
"Company Obligations" 4.01
"Company Order" 10.05
"Covenant Defeasance" 8.03
"Custodian" 6.01
"DTC" 2.03
"Excess Proceeds" 4.08
"Guarantee Obligations" 12.01
"Legal Defeasance" 8.02
"Neocork" 4.14
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Payment Default" 6.01
"Released Collateral" 10.05
"Released Property" 10.05
"Released Trust Monies" 11.04
"Registrar" 2.03
"Replacement Assets" 4.08
"Restricted Payments" 4.09
"Section 1145" 2.06(c)
"Title Policy" 10.02
"Valuation Date" 10.05
SECTION 1.03 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.
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The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
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 GAAP;
(3) "OR" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING
(a) General.
The Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof, except that Notes
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may be originally issued in such denominations as may be required under the
Reorganization Plan or Section 4.01 hereof and may be subsequently transferred
in such denominations.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Notes.
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and issuances of Additional Notes. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby shall
be made by the Trustee or the Note Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by
Section 2.06 hereof.
All Notes issued on the Issue Date shall be represented by
beneficial interests in the Unrestricted Global Note unless the holder of such
beneficial interest is a party to the Registration Rights Agreement, in which
case such holder's interest shall be represented by a beneficial interest in the
Restricted Global Note. All Additional Notes issued in respect of a Global Note
shall be represented by increases in such Global Note, and all Additional Notes
issued in respect of a Definitive Note shall be represented by an additional
Definitive Note (and if such Definitive Note is a Restricted Definitive Note,
then such Additional Note shall be a Restricted Definitive Note).
SECTION 2.02 EXECUTION AND AUTHENTICATION
One Officer shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal may be reproduced on the Notes and may
be in facsimile form. If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid. A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture. The Trustee shall, upon a written order of
the Company signed by two Officers (an "AUTHENTICATION ORDER") authenticate (i)
Notes for original issue on the Issue Date up to $25,000,000 and (ii) after the
Issue Date, any Additional Notes as contemplated by Section 4.01. The aggregate
principal amount of Notes outstanding at any time may not exceed the amount
specified in the preceding sentence except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes
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authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company.
SECTION 2.03 REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "REGISTRAR" includes any co-registrar and the term
"PAYING AGENT" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar. The Company initially
appoints The Depository Trust Company ("DTC") to act as Depositary with respect
to the Global Notes. The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.05 HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06 TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of
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the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. All Global Notes will be exchanged by the Company for
Definitive Notes if (i) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary, (ii) the Company in its
sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee, or (iii) there shall have occurred and be continuing a
Default or an Event of Default and such exchange shall be requested by a written
notice given to the Depositary by a Holder. Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued
in such names as the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Section 2.07
hereof. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof,
in each case subject to the requirements of Section 2.06(f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with the following, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in the Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the Restricted
Global Note in accordance with Section 2.06(f) hereof and the transfer
restrictions set forth in the Transfer Restriction Legend. Beneficial interests
in the Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the Unrestricted Global Note.
(ii) Transfers and Exchanges of Beneficial Interests in a
Global Note for Beneficial Interests in the other Global Note. In connection
with all transfers and exchanges of beneficial interests in a Global Note for
beneficial interests in the other Global Note, the transferor of such beneficial
interest must deliver to the Registrar (A) a written order from a Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in the
applicable Global Note in an amount equal to the beneficial interest to be
transferred or exchanged, (B) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase, and (C) the documentation required by Section
2.06(f) hereof. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture
(including, without limitation, Section 2.06(f) hereof) and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Notes pursuant to Section 2.06(h)
hereof.
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(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
If any holder of a beneficial interest in a Global Note
proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon (i) delivery to the Registrar of (A) a
written order from a Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged, and (B) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect such transfer or exchange, and (ii) if the
beneficial interest being transferred or exchanged is a beneficial interest in
the Restricted Global Note, satisfaction of the conditions set forth in Section
2.06(f) hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.02, the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered.
Any Definitive Note issued upon exchange or transfer of a
beneficial interest in the Unrestricted Global Note that is issued to a Person
that may be deemed to be an "underwriter" within the meaning of 11 U.S.C.
Section 1145 ("SECTION 1145") or an "affiliate" or a "control person" within the
meaning of the Securities Act and any Definitive Note issued upon exchange or
transfer of a beneficial interest in the Restricted Global Note shall, in each
case, unless otherwise permitted under Section 2.06(f), bear the Transfer
Restriction Legend and shall be subject to all restrictions on transfer
contained therein.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
If any Holder of Definitive Note proposes to exchange such
Note for a beneficial interest in a Global Note or to transfer such Definitive
Note to a Person who takes delivery thereof in the form of a beneficial interest
in a Global Note, then, upon (i) delivery to the Registrar of a written order
and instructions of the types described in Section 2.06(b)(ii) above, and (ii)
if the Definitive Note being transferred or exchanged is a Restricted Definitive
Note, satisfaction of the conditions set forth in Section 2.06(f) hereof, the
Trustee shall cancel the applicable Definitive Note and increase or cause to be
increased the aggregate principal amount of the applicable Global Note.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes.
Upon request by a Holder of Definitive Notes and such
Holder's compliance with the provisions of this Section 2.06(e) and, if
applicable, Section 2.06(f), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
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Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Xxxxxx or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to Section 2.06(f).
Any Definitive Note issued upon exchange or transfer of an
Unrestricted Definitive Note that is issued to a Person that may be deemed to be
an "underwriter" within the meaning of Section 1145 or an "affiliate" or a
"control person" within the meaning of the Securities Act and any Definitive
Note issued upon exchange or transfer of a Restricted Definitive Note shall, in
each case, unless otherwise permitted under Section 2.06(f), bear the Transfer
Restriction Legend and shall be subject to all restrictions on transfer
contained therein.
(f) Transfers and Exchanges of Transfer Restricted Notes. No
Person may transfer or exchange a Restricted Definitive Note, the Restricted
Global Note or a beneficial interest in the Restricted Global Note (including,
without limitation, the removal of the Transfer Restriction Legend thereon)
unless such transfer or exchange is made (i) pursuant to an effective
registration statement under the Securities Act, (ii) in compliance with the
applicable requirements of Rule 144 or (iii) pursuant to an exemption from
registration requirements of the Securities Act and, in the case of clauses (ii)
or (iii), if the Registrar or the Company so requests, the Registrar receives an
opinion of counsel in form reasonably acceptable to the Registrar and the
Company stating that (A) such transfer or exchange is in compliance with the
Securities Act and (B) if such transferee or exchangee seeks the removal of the
Transfer Restriction Legend, the restrictions on transfer contained herein and
in the Transfer Restriction Legend are no longer required in order to maintain
compliance with the Securities Act. Upon satisfaction of the requirements of
this Section 2.06(f) with respect to the removal of the Transfer Restriction
Legend, as appropriate, such Restricted Definitive Note shall be exchanged for
an Unrestricted Definitive Note or such beneficial interest in the Restricted
Global Note shall be exchanged for a beneficial interest in the Unrestricted
Global Note, and the Trustee shall adjust the principal balances of the Global
Notes pursuant to Section 2.06(h) hereof.
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture to the extent
required by the applicable provisions of this Indenture:
(i) Transfer Restriction Legend. Each Transfer Restricted
Note shall bear a legend substantially in the following form:
"THIS NOTE HAS BEEN ISSUED IN AN OFFERING PURSUANT TO 11 U.S.C. Section
1145 ("SECTION 1145") TO A PERSON OR ENTITY WHO MAY BE DEEMED TO BE (1)
AN "UNDERWRITER" WITHIN THE MEANING OF SECTION 1145 OR (2) AN
"AFFILIATE" OR "CONTROL PERSON" OF THE ISSUER WITHIN THE MEANING OF THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). AS SUCH, THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (1) AN
EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE IN ACCORDANCE WITH THE
SECURITIES ACT AND ANY OTHER
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APPLICABLE STATE OR FEDERAL SECURITIES LAWS, (2) AN EXEMPTION FROM SUCH
REGISTRATION (BASED ON AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
AND THE REGISTRAR FOR THIS NOTE, IF SO REQUESTED BY THE ISSUER OR THE
REGISTRAR) OR (3) COMPLIANCE WITH THE APPLICABLE REQUIREMENTS OF RULE
144 PROMULGATED UNDER THE SECURITIES ACT (BASED ON AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER AND THE REGISTRAR FOR THIS NOTE, IF SO
REQUESTED BY THE ISSUER OR THE REGISTRAR).
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order.
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(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 4.07 and 4.08 hereof.
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same Indebtedness, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
(iv) Neither the Company nor the Registrar shall be required
(A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a Record Date and the next succeeding
Interest Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(vii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by facsimile.
SECTION 2.07 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the reasonable judgment of the Trustee and the Company to protect the Company,
the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge for its expenses
in replacing a Note. Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
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SECTION 2.08 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note. If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser. If the principal amount
of any Note is considered paid under Section 4.01 hereof, it ceases to be
outstanding and interest on it ceases to accrue. If the Paying Agent (other than
the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption
date or the maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
SECTION 2.09 TREASURY NOTES
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
SECTION 2.11 CANCELLATION
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
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SECTION 2.12 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
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SECTION 3.03 NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
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SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent immediately available funds
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION
The Company shall have the option to redeem the Notes, in whole
or in part, at any time and from time to time, at the redemption price of 101%
of principal amount, plus accrued and unpaid interest thereon, if any, to the
applicable redemption date.
SECTION 3.08 NO MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
(a) General. The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
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for and sufficient to pay all principal, premium, if any, and interest then due.
The Company's Obligations under the Notes, the Indenture, the Registration
Rights Agreement and the Collateral Documents are referred to herein as the
"COMPANY OBLIGATIONS."
(b) Payment of Interest by Issuance of Additional Notes.
Subject to the terms and conditions of this Section 4.01, during
the period beginning on the Issue Date and ending on August 15, 2004, so long as
no Default or Event of Default is then continuing, the Company may elect to pay
interest on all or any portion of the outstanding Notes by the issuance of
additional Notes ("ADDITIONAL NOTES") at a rate of 12% per annum in lieu of
cash.
In order to exercise such right, the Company must deliver to the
Trustee not less than 10 nor more than 45 days prior to the Record Date for the
Interest Payment Date on which Additional Notes will be issued an Officers'
Certificate notifying the Trustee of its election to pay interest through the
issuance of Additional Notes and the aggregate amount of such Additional Notes
to be issued, and specifying the amount of Additional Notes to be issued through
the issuance of Additional Definitive Notes, the amount to be issued through
increases in the Restricted Global Note and the amount to be issued through
increases in the Unrestricted Global Note. On or after the date of such
Officers' Certificate but not less than 10 days prior to the relevant Interest
Payment Date, the Company shall deliver to the Trustee any Additional Definitive
Notes to be issued, which Additional Definitive Notes shall have been duly
executed by the Company in the manner provided in Section 2.02.
If the conditions set forth in this Section 4.01(b) are not
satisfied, interest on the Notes shall be due and payable in immediately
available U.S. funds as specified in this Indenture and the Notes. If the
Company has satisfied the conditions in this Section 4.01(b), on the relevant
Interest Payment Date the Trustee shall record increases in the Global Notes and
authenticate Additional Definitive Notes, as appropriate, in the aggregate
principal amounts required to pay such interest.
Each Additional Note is an additional obligation of the Company
and the Subsidiary Guarantors and shall be governed by, and entitled to the
benefits of, this Indenture and shall be subject to the terms of this Indenture
(including the guarantee provisions) and shall rank pari passu with and be
subject to the same terms (including the rate of interest from time to time
payable thereon) as all other Notes (except, as the case may be, with respect to
the issuance date and aggregate principal amount) and shall have the benefit of
all Liens securing Notes.
(c) Default Rate Interest. Notwithstanding any other provision of
this Indenture or the Notes, the Company shall pay interest (including Accrued
Bankruptcy Interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 2%
per annum in excess of the then applicable interest rate on the Notes to the
extent lawful (the "DEFAULT RATE"). In addition, the Company shall pay interest
(including Accrued Bankruptcy Interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the Default Rate to the extent lawful.
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SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.03 REPORTS
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall furnish to the
Trustee and all Holders (i) all quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company were required to file such forms, including a "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"
("MD&A") and, with respect to the annual information only, a report thereon by
the Company's certified independent accountants, (ii) monthly financial
statements in the same form as the quarterly financial statements referred to in
clause (i) (but without the MD&A) and (iii) all reports that would be required
to be filed with the SEC on Form 8-K if the Company were required to file such
reports. In addition, whether or not required by the rules and regulations of
the SEC, the Company shall file a copy of all such information with the SEC for
public availability (unless the SEC will not accept such a filing) and shall
promptly make such information available to all securities analysts and
prospective investors upon request.
(b) For so long as any Transfer Restricted Notes remain
outstanding, the Company and the Subsidiary Guarantors shall furnish to the
Trustee and all Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
SECTION 4.04 COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 30 days
after the end of each fiscal quarter, and within 90 days after the end of each
fiscal year, an Officers' Certificate
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stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal quarter or fiscal year, as appropriate, has been
made under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) hereof shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05 TAXES
The Company shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS
The Company 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, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
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 has been enacted.
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SECTION 4.07 CHANGE OF CONTROL
Upon the occurrence of a Change of Control, the Company shall
offer to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Notes pursuant to the offer described below (the
"CHANGE OF CONTROL OFFER") at an offer price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon to
the date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within 30 days following
any Change of Control, the Company shall mail a notice to each Holder describing
the transaction or transactions that constitute the Change of Control and
offering to repurchase Notes pursuant to the procedures required by this
Indenture and described in such notice. The Company shall 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 and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
The Change of Control Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "CHANGE OF CONTROL OFFER
PERIOD"). No later than five Business Days after the termination of the Change
of Control Offer Period (the "CHANGE OF CONTROL PURCHASE DATE"), the Company
shall purchase all Notes tendered in response to the Change of Control Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the Change of Control Purchase Date is on or after a Record
Date and on or before the related Interest Payment Date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Change of Control Offer.
Upon the commencement of a Change of Control Offer, the Company
shall send, by first class mail, a notice to each of the Holders, with a copy of
each such notice to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. The Change of Control Offer shall be made to all
Holders. The notice, which shall govern the terms of the Change of Control
Offer, shall state:
(a) that the Change of Control Offer is being made
pursuant to this covenant and the length of time the Change of
Control Offer shall remain open;
(b) the Change of Control Payment and the Change of
Control Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Purchase Date;
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(e) that Holders electing to have a Note purchased
pursuant to any Change of Control Offer shall be required to
surrender the Note, with the form entitled "OPTION OF HOLDER TO
ELECT PURCHASE" on the reverse of the Note completed, or transfer
by book-entry transfer, to the Company, a Depositary, if
appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Change of
Control Purchase Date; and
(f) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the
Change of Control Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase
and a statement that such Xxxxxx is withdrawing his election to
have such Note purchased.
On the Change of Control Purchase Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and, upon receipt of an
Authentication Order, the Trustee shall promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; provided
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
SECTION 4.08 ASSET SALES
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in an Asset Sale in excess of $1,000,000 unless (a) the
Intercreditor Agreement is in effect and the Intercreditor Agreement does not
prohibit such Asset Sale and expressly provides that the Trustee has no right to
restrict or permit, or approve or disapprove, such Asset Sale, or (b) in all
other cases, (i) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value, and in the case of a lease of assets, a lease providing for rent and
other conditions which are no less favorable to the Company (or the Subsidiary,
as the case may be) in any material respect than the then prevailing market
conditions (evidenced in each case by a resolution of the Board of Directors of
such entity set forth in an Officers' Certificate delivered to the Trustee) of
the assets or Equity Interests sold or otherwise disposed of, (ii) at least 75%
(100% in the case of lease payments) of the consideration therefor received by
the Company or such Subsidiary is in the form of cash or Cash Equivalents;
provided that the amount of any notes or other obligations received by the
Company or any such Subsidiary from such transferee that are promptly, but in no
event more than 30 days after receipt, converted by the Company or such
Subsidiary into cash (to the extent of the cash
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received), shall be deemed to be cash for purposes of this provision, (iii)
subject to the Intercreditor Agreement, if such Asset Sale involves the
disposition of Collateral, the Company or such Subsidiary has complied with the
provisions of Articles 10 and 11 hereof, and (iv) the Company or the Subsidiary,
as the case may be, applies the Net Proceeds as provided in the following
paragraph.
Subject to the Intercreditor Agreement, any such Net Proceeds
may, at the option of the Company, be applied within 180 days of the related
Asset Sale as follows:
(i) to the acquisition of another business or the acquisition
of other long-term assets, in each case, in the same or a similar line of
business as the Company or any of its Subsidiaries was engaged in on the Issue
Date or any reasonable extensions or expansions thereof ("REPLACEMENT ASSETS");
provided, that any Replacement Assets shall be owned by the Company or by the
Subsidiary Guarantor that made the Asset Sale and shall not be subject to any
Liens except Collateral Permitted Liens (and the Company or such Subsidiary
Guarantor, as the case may be, shall execute and deliver to the Trustee such
Collateral Documents or other instruments as shall be necessary to cause such
Replacement Assets to become subject to a Lien in favor of the Trustee, for the
benefit of the holders of the Notes, securing its obligations under the Notes or
its Subsidiary Guarantee, as the case may be, and otherwise shall comply with
the provisions of this Indenture applicable to After-Acquired Property); or
(ii) to reimburse the Company or its Subsidiaries for
expenditures made, and costs incurred, to repair, rebuild, replace or restore
property subject to loss, damage or taking to the extent that the Net Proceeds
consist of Net Insurance Proceeds received on account of such loss, damage or
taking.
Any portion of such Net Proceeds that is not used as described in
subparagraphs (i) or (ii) above within such 180-day period shall constitute
"EXCESS PROCEEDS" subject to disposition as provided below. When the aggregate
amount of Excess Proceeds exceeds $3,000,000 the Company shall be required to
make an offer to all Holders of Notes (an "ASSET SALE OFFER") to purchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase, in accordance with the procedures set forth in this Indenture. To the
extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
Subject to the Intercreditor Agreement, all proceeds of
Collateral shall, pending their application in accordance with this covenant or
the release thereof in accordance with Article 10 and Article 11, be deposited
in the Collateral Account under this Indenture.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "ASSET SALE OFFER
PERIOD"). No later than five Business Days after the termination of the Asset
Sale Offer Period (the "ASSET SALE PURCHASE DATE"), the Company shall purchase
the principal amount of Notes required to be purchased pursuant to this covenant
(the
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"ASSET SALE OFFER AMOUNT") or, if less than the Asset Sale Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale Offer. Payment for
any Notes so purchased shall be made in the same manner as interest payments are
made.
If the Asset Sale Purchase Date is on or after a Record Date and
on or before the related Interest Payment Date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such Record Date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to
this covenant and the length of time the Asset Sale Offer shall
remain open;
(b) the Asset Sale Offer Amount, the purchase price and
the Asset Sale Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Asset Sale
Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender
the Note, with the form entitled "OPTION OF HOLDER TO ELECT
PURCHASE" on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, the Depositary, if appointed
by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Asset Sale Purchase Date;
(f) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the
Asset Sale Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase
and a statement that such Xxxxxx is withdrawing his election to
have such Note purchased;
(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Asset Sale Offer Amount, the
Company shall select the Notes to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the
Company so that only Notes in
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denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Asset Sale Purchase Date, the Company shall, to
the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount
has been tendered, all Notes tendered, and shall deliver to the Trustee an
Officers' Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this covenant. The
Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Asset Sale Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes tendered by such Holder and accepted by the Company for purchase,
and the Company shall promptly issue a new Note, and the Trustee, upon delivery
of an Officers' Certificate from the Company, shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on the Asset Sale
Purchase Date.
SECTION 4.09 RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of its
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 Subsidiaries' Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company) (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company or dividends or distributions payable to the Company or any Wholly Owned
Subsidiary of the Company that is a Subsidiary Guarantor); (ii) purchase, redeem
or otherwise acquire or retire for value any Equity Interests of the Company or
any direct or indirect parent of the Company or other Affiliate or Subsidiary of
the Company (other than any such Equity Interests owned by the Company or any
Wholly Owned Subsidiary of the Company that is a Subsidiary Guarantor); (iii)
make any principal payment on, or purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness that is contractually subordinated to the
Notes or any Subsidiary Guarantee, except at final maturity, other than through
the purchase or acquisition by the Company of Indebtedness through the issuance
in exchange therefor of Equity Interests (other than Disqualified Stock); 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 and after giving effect to such
Restricted Payment:
(a) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof;
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(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of
Section 4.10; and
(c) such Restricted Payment, together with the aggregate
of all other Restricted Payments made by the Company and its
Subsidiaries after the Issue Date (excluding Restricted Payments
permitted by clauses (ii) and (iii) of the next succeeding
paragraph), is less than the sum, without duplication, of (i)
$5,000,000 plus (ii) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from
October 1, 2001 to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100%
of such deficit), plus (iii) to the extent not included in the
amount described in clause (ii) above, 100% of the aggregate net
cash proceeds received after the Issue Date by the Company from
the issue or sale of, or from additional capital contributions in
respect of, Equity Interests of the Company or of debt securities
of the Company or any Subsidiary Guarantor that have been
converted into, or cancelled in exchange for, Equity Interests of
the Company (other than Equity Interests (or convertible debt
securities) sold to a Subsidiary or an Affiliate of the Company
and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock), plus (iv) to the extent
that any Restricted Investment that was made after the Issue Date
is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (A) the amount expended by the Company and its
Subsidiaries to make such Restricted Investment and (B) the Net
Proceeds received by the Company or any Subsidiary Guarantor upon
sale or liquidation of such Restricted Investment.
The foregoing provisions shall not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company or any direct or indirect parent of the
Company in exchange for, or out of the net cash proceeds of, the substantially
concurrent sale (other than to a Subsidiary or an Affiliate of the Company) of,
or from substantially concurrent additional capital contributions in respect of,
other Equity Interests of the Company (other than any Disqualified Stock);
provided that any net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition, and any Net Income resulting
therefrom, shall be excluded from clauses (c)(ii) and (c)(iii) of the preceding
paragraph; and (iii) the defeasance, redemption or repurchase of Indebtedness
that is contractually subordinated to the Notes or any Subsidiary Guarantee with
the net cash proceeds from an incurrence of Permitted Refinancing Debt or the
substantially concurrent sale (other than to a Subsidiary or an Affiliate of the
Company) of, or from substantially concurrent additional capital contributions
in respect
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of, Equity Interests of the Company (other than Disqualified Stock); provided,
that any net cash proceeds that are utilized for any such defeasance, redemption
or repurchase, and any Net Income resulting therefrom, shall be excluded from
clauses (c)(ii) and (c)(iii) of the preceding paragraph.
The amount of all Restricted Payments (other than cash) shall be
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) proposed to be transferred by the Company or
such Subsidiary, as the case may be, pursuant to the Restricted Payment. Not
later than the date of making any Restricted Payment, the Company shall deliver
to the Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this covenant were computed, which calculations may be based upon the Company's
latest available financial statements.
SECTION 4.10 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its
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") any Indebtedness (including Acquired
Indebtedness) and the Company shall not issue any Disqualified Stock and shall
not permit any of its Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Indebtedness) or issue shares of Disqualified Stock and the Company's
Subsidiaries that are Subsidiary Guarantors may incur Indebtedness if: (i) the
Fixed Charge Coverage Ratio for the Company's 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 2.0 to 1,
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, at the beginning of such
four-quarter period; and (ii) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; provided, that no
Guarantee may be incurred pursuant to this paragraph unless the guaranteed
Indebtedness is incurred by the Company or a Subsidiary Guarantor pursuant to
this paragraph.
The foregoing provisions shall not apply to:
(i) the incurrence by the Company or a Subsidiary
Guarantor of New Senior Debt (and Guarantees thereof by
Subsidiaries that are Subsidiary Guarantors and by the Company,
if applicable) in an aggregate principal amount at any time
outstanding (with letters of credit obligations being deemed to
have a principal amount equal to the maximum potential liability
of the Company and its Subsidiaries that are Subsidiary
Guarantors with respect thereto) not to exceed an amount equal to
$45,000,000;
(ii) the incurrence by the Company of the Existing
Indebtedness;
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(iii) the incurrence by the Company of Indebtedness
represented by the Notes and by the Subsidiary Guarantors of
Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any Subsidiary
Guarantor of Indebtedness represented by Capital Lease
Obligations, mortgage financings or Purchase Money Obligations,
in each case incurred for the purpose of financing all or any
part of the purchase price or cost of construction or improvement
of property used in the business of the Company or such
Subsidiary Guarantor, in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any Subsidiary
Guarantor of Permitted Refinancing Indebtedness in exchange for,
or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund, Indebtedness that was incurred
under the first paragraph of this Section 4.10;
(vi) the incurrence by the Company or any of its Wholly
Owned Subsidiaries of intercompany Indebtedness between or among
the Company and any of its Wholly Owned Subsidiaries or between
or among any Wholly Owned Subsidiaries; provided, however, that
(i) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other
than a Wholly Owned Subsidiary and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not either
the Company or a Wholly Owned Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the
Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its
Subsidiaries that are Subsidiary Guarantors of Hedging
Obligations that are incurred for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by this Indenture to be incurred;
and
(viii) the incurrence by the Company or any of its
Subsidiaries that are Subsidiary Guarantors of Indebtedness (in
addition to Indebtedness permitted by any other clause of this
paragraph) in an aggregate principal amount at any time
outstanding not to exceed the sum of $2,500,000;
Notwithstanding any other provision of this covenant, a Guarantee
of Indebtedness permitted by the terms of this Indenture at the time such
Indebtedness was incurred shall not constitute a separate incurrence of
Indebtedness.
SECTION 4.11 LIENS
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired, or any income or
profits therefrom or assign or convey any right to receive income therefrom,
except Permitted Liens.
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The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any Collateral now owned or hereafter acquired, or any income
or profits therefrom or assign or convey any right to receive income therefrom,
except Collateral Permitted Liens.
SECTION 4.12 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary to (i)(A) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock or (2) with respect
to any other interest or participation in, or measured by, its profits, or (B)
pay any Indebtedness owed to the Company or any of its Subsidiaries, (ii) make
loans or advances to the Company or any of its Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (a)
Existing Indebtedness as in effect on the Issue Date, (b) the New Credit
Agreement as in effect as of the Issue Date, and any amendments, modifications,
restatements, renewals, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
supplements, refundings, replacement or refinancings are no more restrictive
with respect to such dividend and other payment restrictions than those
contained in the New Credit Agreement as in effect on the Issue Date, (c) this
Indenture and the Notes, (d) applicable law, (e) any instrument governing
Acquired Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Subsidiaries as in effect at the time of such acquisition (except to
the extent such Acquired Indebtedness was incurred in connection with or in
contemplation of such acquisition), 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, provided that
the Consolidated EBITDA of such Person is not taken into account in determining
whether such acquisition was permitted by the terms of this Indenture, (f) by
reason of customary non-assignment provisions in leases and licenses entered
into in the ordinary course of business and consistent with past practices, (g)
Purchase Money Obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above
on the property so acquired, (h) agreements relating to the financing of the
acquisition of real or tangible personal property acquired after the Issue Date,
provided, that such encumbrance or restriction relates only to the property
which is acquired and in the case of any encumbrance or restriction that
constitutes a Lien, such Lien constitutes a Purchase Money Lien, (i) any
restriction or encumbrance in the nature of clause (iii) above contained in
contracts for sale of assets permitted by this Indenture in respect of the
assets being sold pursuant to such contract, or (j) Permitted Refinancing Debt,
provided that the restrictions contained in the agreements governing such
Permitted Refinancing Debt are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced.
SECTION 4.13 TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its
Subsidiaries to, 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 any contract, agreement, understanding, loan, advance or guarantee with,
or for the benefit of, any Affiliate (each of the foregoing, an "AFFILIATE
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TRANSACTION"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such Subsidiary
with an unrelated Person and (ii) the Company delivers to the Trustee (a) with
respect to any Affiliate Transaction entered into after the date of this
Indenture involving aggregate consideration in excess of $1,000,000, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction involving aggregate consideration in excess of $5,000,000,
an opinion as to the fairness to the Company or such Subsidiary of such
Affiliate Transaction from a financial point of view issued by an investment
banking firm of national standing; provided that the following shall not be
deemed to be Affiliate Transactions: (x) any employment agreement entered into
by the Company or any of its Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Subsidiary, (y)
transactions between or among the Company and/or its Wholly Owned Subsidiaries
that are Subsidiary Guarantors and (z) Restricted Payments permitted by Section
4.09.
SECTION 4.14 ADDITIONAL SUBSIDIARY GUARANTEES
(a) All Subsidiaries of the Company shall be Subsidiary
Guarantors. The Company shall not permit any Person that is not a Subsidiary
Guarantor to be a Subsidiary, and shall cause each Subsidiary that is not a
Subsidiary Guarantor to execute and deliver a supplemental indenture (which
provides for a Subsidiary Guarantee) in the form attached hereto as Exhibit B
and deliver an Opinion of Counsel to the Trustee to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary and constitutes a valid and binding obligation of such Subsidiary,
enforceable against such Subsidiary in accordance with its terms (subject to
customary exceptions).
(b) Notwithstanding subsection (a) of this Section, Neocork
Technologies, Inc. ("NEOCORK") shall not be required to be a Subsidiary
Guarantor and shall not be required to execute a supplemental indenture as
specified in subsection (a) above so long as (i) Neocork is a Subsidiary of the
Company but is not a Wholly Owned Subsidiary of the Company, and (ii) Neocork
has not incurred any Indebtedness or other obligations (as borrower, guarantor
or otherwise) with respect to any Indebtedness of the Company or any Subsidiary
Guarantor that is incurred by the Company or a Subsidiary Guarantor on or after
the Issue Date (including, without limitation, New Senior Debt). Upon failure of
either or both of the conditions set forth in the preceding sentence, the
Company shall promptly comply, and shall cause Neocork to promptly comply, with
subsection (a) above.
SECTION 4.15 IMPAIRMENT OF SECURITY INTERESTS
Neither the Company nor any of its Subsidiaries shall take or
omit to take any action which action or omission could reasonably be expected to
have the result of adversely affecting or impairing the Lien in favor of the
Trustee for the benefit of the holders of the Notes in the Collateral.
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SECTION 4.16 PAYMENTS FOR CONSENT
Neither the Company nor any of its Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.17 CORPORATE EXISTENCE
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
ARTICLE 5
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company shall not, and shall not permit its Subsidiaries to,
in a single transaction or series of related transactions, consolidate or merge
with or into (whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company or of the Company and its
Subsidiaries taken as a whole in one or more related transactions, to another
Person unless (i) the Company is the surviving corporation or the 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 shall have been made (such surviving corporation or transferee
Person, the "SURVIVING ENTITY") is a corporation organized or existing under the
laws of the United States, any state thereof or the District of Columbia; (ii)
the Surviving Entity assumes all the obligations of the Company under the Notes,
this Indenture and the Collateral Documents, and the Surviving Entity's
Subsidiaries become Subsidiary Guarantors, pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee; (iii) the Surviving Entity
causes such amendments, supplements or other instruments to be filed and
recorded in such jurisdictions as may be required by applicable law to preserve
and protect the Lien of the Collateral Documents in the Collateral owned by or
transferred to the Surviving Entity, together with such financing statements as
may be required by applicable law to preserve and protect the Lien of the
Collateral Documents in the Collateral owned by or transferred to the Surviving
Entity, together with such financing statements as may be required to
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perfect any security interests in such Collateral which may be perfected by the
filing of a financing statement under the Uniform Commercial Code of the
relevant states; (iv) the Collateral owned by or transferred to the Surviving
Entity shall (1) continue to constitute Collateral under the Indenture and the
Collateral Documents, (2) shall be subject to the Lien in favor of the Trustee
for the benefit of the holders of the Notes and (3) shall not be subject to any
Lien other than Collateral Permitted Liens; (v) the property and assets of the
Person which is merged or consolidated with or into the Surviving Entity, and of
the Surviving Entity's Subsidiaries, to the extent that they are property and
assets of types which would constitute Collateral under the Collateral
Documents, shall be treated as After-Acquired Property and the Surviving Entity
and its Subsidiaries shall take such actions as may be necessary to cause such
property and assets to be made subject to the Lien of the Collateral Documents
in the manner and to the extent required in the Indenture; (vi) immediately
after such transaction no Default or Event of Default exists; (vii) the
Surviving Entity (A) shall have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (B) shall, at the time of such
transaction and after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.10; and (viii)
the Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel addressed to the Trustee, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or
disposition and such supplemental indenture, if any, comply with this Indenture
and that such supplemental indenture, and this Indenture, as amended and
supplemented thereby, are enforceable.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company or of the Company and its Subsidiaries taken as a
whole in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "COMPANY" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor of the Company shall not be relieved from the obligation to pay
the principal of and interest on the Notes except in the case of a sale of all
of the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
An "EVENT OF DEFAULT" occurs if:
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(1) the Company defaults in the payment of interest on any Note
when the same becomes due and payable and the Default continues for a period of
15 days;
(2) the Company defaults in the payment of the principal of or
premium, if any, on any Note when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company or any of its Subsidiaries fails to observe or
perform any covenant, condition or agreement on the part of the Company or such
Subsidiary to be observed or performed pursuant to Sections 4.07, 4.08, 4.09,
4.10 or 4.14 hereof;
(4) the Company or any of its Subsidiaries fails to comply with
any of its other agreements or covenants in, or provisions of, the Notes, the
Subsidiary Guarantees, this Indenture or the Collateral Documents and the
Default continues for the period and after the notice specified below;
(5) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Subsidiaries
(or the payment of which is Guaranteed by the Company or any of its
Subsidiaries), whether such Indebtedness or Guarantee now exists or shall be
created hereafter, which default (a) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness (a "PAYMENT DEFAULT") or (b)
results in the acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of such Indebtedness, together with the
principal amount of any other Indebtedness as to which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $2,500,000
or more;
(6) a final judgment or final judgments for the payment of money
(not fully covered by insurance which is acknowledged in writing by the insurer)
are entered by a court or courts of competent jurisdiction against the Company
or any of its Subsidiaries and such judgment or judgments remain undischarged
for a period (during which execution shall not be effectively stayed) of 30
days, provided that the aggregate of all such undischarged judgments exceeds
$2,500,000;
(7) a default by the Company or any of its Subsidiaries in the
performance of any of the Collateral Documents which adversely affects the
enforceability or validity of the Lien in the Collateral or which adversely
affects the condition or value of the Collateral in any material respect, any
repudiation or disaffirmation by the Company or any Subsidiary of its
Obligations under the Collateral Documents or the determination in a judicial
proceeding that any Collateral Document is unenforceable or invalid against the
Company or any of its Subsidiaries for any reason;
(8) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary
Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee;
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(9) the Company or any of its Subsidiaries pursuant to or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against
it in an involuntary case,
(c) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due;
or
(10) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Subsidiary in
an involuntary case,
(b) appoints a Custodian of the Company or any Subsidiary
or for all or substantially all of the property of the Company or
any Subsidiary, or
(c) orders the liquidation of the Company or any
Subsidiary, and the order or decree remains unstayed and in
effect for 30 consecutive days.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
An Event of Default shall not be deemed to have occurred under
clause (3), (5) or (6) until the Trustee shall have received written notice from
the Company or any of the Holders or unless a Responsible Officer shall have
knowledge of such Event of Default. A Default under clause (4) is not an Event
of Default until the Trustee notifies the Company, or the Holders of at least
25% in principal amount of the then outstanding Notes notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 30 days
after receipt of the notice. The notice must specify the Default, demand that it
be remedied and state that the notice is a "NOTICE OF DEFAULT."
SECTION 6.02 ACCELERATION
If an Event of Default (other than an Event of Default specified
in clauses (9) and (10) of Section 6.01) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Notes by written notice to
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the Company and the Trustee may declare the unpaid principal of and any accrued
interest on all the Notes to be due and payable. Upon such declaration the
principal and interest shall be due and payable immediately. If an Event of
Default specified in clause (9) or (10) of Section 6.01 occurs, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the then outstanding Notes by written
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal or interest that has become
due solely because of the acceleration) have been cured or waived.
SECTION 6.03 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may,
subject to the Intercreditor Agreement, pursue any available remedy to collect
the payment of principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes, this Indenture or the
Collateral Documents.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided, however, that,
subject to Section 6.02, the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising 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 or that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
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SECTION 6.06 LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(d) 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
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture or the Collateral Documents to
prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest 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.
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SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
I The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its
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discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Collateral Documents and the
Trustee need perform only those duties that are specifically set forth in this
Indenture and the Collateral Documents and no others, and no implied covenants
or obligations shall be read into this Indenture or the Collateral Documents
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture or the Collateral
Documents. However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture or
the Collateral Documents.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to this
Section 7.01 and Section 7.02.
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(e) No provision of this Indenture or the Collateral Documents
shall require the Trustee to expend or risk its own funds or incur any
liability. The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture or the Collateral Documents at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE
(a) In connection with the Trustee's rights and duties under this
Indenture or the Collateral Documents, the Trustee may conclusively rely upon
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 under this
Indenture or the Collateral Documents, it may require an Officers' Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder or pursuant to the Collateral
Documents in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture or the Collateral
Documents.
(e) Unless otherwise specifically provided in this Indenture or
the Collateral Documents, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture or the Collateral Documents
at the request or direction of any of the Holders unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) Except with respect to Section 4.01 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company's covenants in
Article 4 hereof. In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 6.01(1), 6.01(2) and 4.01 or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge.
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(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 may, in its discretion, make such further inquiry or investigation
into such facts or matters as it may see fit and if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company personally or by agent or
attorney.
(i) To the extent any provisions of the Collateral Documents
conflict with or are silent with respect to the matters set forth in this
Article 7, such Collateral Document shall be deemed to include such provisions
set forth herein as if stated therein.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
SECTION 7.04 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall
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comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and the Collateral Documents
and services hereunder and thereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses (including reasonable attorneys' fees) incurred
by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture and the Collateral Documents, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder or under the
Collateral Documents. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and the termination of
any Collateral Document.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture and the termination of any Collateral Documents.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.01(9) or 6.01(10) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
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SECTION 7.08 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Xxxxxxx does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
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SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to 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.
SECTION 7.12 INTERCREDITOR AGREEMENT
Notwithstanding anything to the contrary contained herein (but
subject to Section 13.01 hereof), the rights, duties and obligations of the
Trustee are subject to the Intercreditor Agreement.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "OUTSTANDING" only for
the purposes of Section 8.05 hereof and
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the other Sections of this Indenture referred to in (a) and (b) below, and to
have satisfied all its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (b) the Company's obligations with respect to
such Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8. Subject to
compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
SECTION 8.03 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter
be deemed not "OUTSTANDING" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "OUTSTANDING"
for all other purposes hereunder. For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(5) through 6.01(8) hereof shall not
constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, cash in United States
dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any,
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and interest on the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case
may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof,
the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B)
since the Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof,
the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit (other than a Default
or Event of Default resulting from the incurrence of Indebtedness
all or a portion of the proceeds of which will be used to defease
the Notes pursuant to this Article 8 concurrently with such
incurrence) or insofar as Sections 6.01(9) or 6.01(10) hereof is
concerned, at any time in the period ending on the 91st day after
the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that on the 91st day following
the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
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(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders over any
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied
with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "TRUSTEE") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06 REPAYMENT TO COMPANY
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be
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published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Notes or the Collateral Documents without the consent of any Holder of a
Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for the assumption of the Company's
obligations to the Holders of the Notes in the case of a merger
or consolidation pursuant to Article 5 hereof;
(c) to provide for additional Subsidiary Guarantors as set
forth in Section 4.14 or to provide for the release of a
Subsidiary Guarantor pursuant to Section 12.04;
(d) to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely
affect the legal rights hereunder of any Holder; or
(e) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join
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with the Company in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES
Except as provided below in this Section 9.02, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture
(including Sections 4.07 and 4.08 hereof), the Notes or any Collateral Document
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and
6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture, the
Notes or any Collateral Document may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for the
Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental Indenture unless such amended or supplemental Indenture affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture, the Notes or any Collateral Document. However,
without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
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(b) reduce the principal of or change the fixed maturity
of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes, except with respect to Sections
4.07 hereof (so long as no Change of Control then exists or is
contemplated) and 4.08 hereof (so long as no Excess Proceeds then
exist);
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes
(except, subject to Section 6.02 hereof, a rescission of
acceleration of the Notes by the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that stated
in the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of
Notes to receive payments of principal of, premium, if any, or
interest on the Notes;
(g) waive a redemption payment with respect to any Note;
(h) make any change in Section 6.04 or 6.07 hereof or in
the foregoing amendment and waiver provisions; or
(i) release any Collateral other than pursuant to and in
compliance with the terms hereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Xxxxxx's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
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SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive indemnity reasonably satisfactory to it
and to receive and (subject to Section 7.01) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is authorized or permitted
by this Indenture.
ARTICLE 10
COLLATERAL
SECTION 10.01 COLLATERAL DOCUMENTS; ADDITIONAL COLLATERAL
(a) In order to secure the due and punctual payment of the
principal of, premium, if any, and interest on the Notes when and as the same
shall be due and payable, whether on an Interest Payment Date, at maturity, on
any Asset Sale Purchase Date or Change of Control Purchase Date, or by
acceleration, redemption or otherwise, and interest on the overdue principal of
and (to the extent permitted by law) interest, if any, on the Notes and the
performance of all other obligations of the Company and the Subsidiary
Guarantors to the Holders or the Trustee under this Indenture, the Notes, the
Subsidiary Guarantees, and any other documents contemplated hereby, as the case
may be, the Company, the Subsidiary Guarantors and the Trustee, as applicable,
have simultaneously with the execution of this Indenture entered into the
Collateral Documents, and may in the future enter into additional Collateral
Documents. The Trustee, the Company and the Subsidiary Guarantors each hereby
agree that the Trustee holds its interest in the Collateral in trust for the
benefit of the Holders pursuant to the terms of the Collateral Documents, and
that the Trustee may hold such interest through a collateral agent (including,
without limitation, the collateral agent appointed in the Intercreditor
Agreement as in effect as of the Issue Date). Each of the Company and the
Subsidiary Guarantors covenants and agrees that it will execute, acknowledge and
deliver to the Trustee such further assignments, transfers, assurances or other
instruments and will do or cause to be done all such acts and things as may be
necessary or proper to assure and confirm to the Trustee its interest in the
Collateral, or any part thereof, as from time to time constituted, and the
right, title and interest in and to the Collateral Documents so as to render the
same available for the security and benefit of this Indenture and of the Notes.
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(b) Promptly upon the acquisition or receipt by the Company or
any of the Subsidiary Guarantors of property and assets (whether real, personal
or mixed, tangible or intangible, and including, without limitation, property
and assets acquired or received pursuant to a merger or consolidation of any
Person or Persons with or into the Company or a Subsidiary Guarantor, pursuant
to an Asset Sale, pursuant to a transaction as a result of which a Subsidiary
Guarantor is released as provided in Section 12.04, or pursuant to a transaction
as a result of which a Person becomes a Subsidiary Guarantor as provided in
Section 4.14 or Section 12.03), of the type that constitutes or would constitute
Collateral (each such item of property and each such asset so acquired or
received being referred to herein as "AFTER-ACQUIRED PROPERTY"):
(i) the Company or the applicable Subsidiary Guarantor, as the
case may be, and the Trustee will enter into all supplemental indentures, if
any, required pursuant to the terms of this Indenture (including, without
limitation, Section 4.14 hereof) and all such amendments or supplements to the
Collateral Documents or such additional Mortgages and Deeds of Trust (in each
case in registerable or recordable form) and other Collateral Documents, and the
Company shall cause such amendments, supplements, mortgages and other Collateral
Documents to be filed and recorded in all such governmental offices as shall be
necessary in order to grant and create a valid first priority Lien on and
security interest in such After-Acquired Property in favor of the Trustee
(subject to no prior Liens except as expressly permitted by this Indenture and
the Collateral Documents), and the Company shall cause appropriate financing
statements, mortgages and other papers to be filed in such governmental offices
as shall be necessary in order to perfect any Lien in such After-Acquired
Property as to which a Lien may, under the Uniform Commercial Code or any other
law of the applicable jurisdiction, be perfected by filing, and, if any such
After-Acquired Property consists of stock certificates, promissory notes or
other property as to which, under the relevant Uniform Commercial Code or other
law, a Lien may be perfected by possession or control, deliver such
certificates, promissory notes and other property, together with stock powers or
assignments duly endorsed in blank, to the Trustee or take such other steps as
may from time to time be necessary or desirable to grant the Trustee control
over such After-Acquired Property; and
(ii) the Company or the applicable Subsidiary Guarantor, as the
case may be, shall also deliver to the Trustee the following:
(x) to the extent such After-Acquired Property consists of
real property or a leasehold interest in real property, a title
insurance policy or an endorsement to an existing title insurance
policy, in the American Land Title Insurance Loan Policy Extended
Coverage form, or its equivalent, and in an amount at least equal
to the purchase price thereof (or, if such property was not
purchased or such purchase price cannot be determined by the
Company, the fair market value thereof as determined by the Board
of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee), in favor of the Trustee
insuring that the Lien of the Collateral Documents or any
additional Collateral Documents constitutes a valid and perfected
first priority Lien, subject only to such Liens as are permitted
by this Indenture and the applicable Collateral Document, on such
real property or leasehold interest in an aggregate amount equal
to the purchase price or the fair market value, as applicable, of
the real property or leasehold interest and containing such
endorsements and other assurances of the type included in the
title insurance policy delivered to the Trustee on
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the Issue Date with respect to the real property Collateral,
together with an Officers' Certificate stating that any Liens or
such real property or leasehold interest are Liens expressly
permitted by this Indenture and the applicable Collateral
Document;
(y) any Opinions of Counsel required pursuant to Section
10.02(b) below; and
(z) evidence of payment of all filing fees, recording and
registration charges, transfer taxes and other costs and
expenses, including reasonable legal fees and disbursements of
counsel for the Trustee (and any local counsel), that may be
incurred to validly and effectively subject the After-Acquired
Property to the Lien of any applicable Collateral Document and
perfect such Lien; and
(iii) The Company shall deliver to the Trustee an Opinion of
Counsel and an Officers' Certificate to the effect that the documents that have
been or are therewith delivered to the Trustee pursuant to this Section 10.01(b)
(including any amendments, supplements, mortgages or other Collateral Documents
referred to in paragraph (i) above) conform to the requirements of this
Indenture.
(c) Each Holder, by accepting a Note, agrees to and shall be
bound by all the terms and provisions of the Intercreditor Agreement and the
other Collateral Documents, including any additional Collateral Documents
described in paragraph (b) of this Section 10.01, as the same may be amended or
supplemented from time to time pursuant to the provisions of the Collateral
Documents (including such additional Collateral Documents) and this Indenture,
and hereby grants the Trustee full power and authority to execute, deliver,
perform and enforce all such Collateral Documents without any consent or other
action by the Holders.
(d) If the Trustee holds its Liens in the Collateral through a
collateral agent, then, at the election of the Trustee, all references in this
Indenture and the Collateral Documents to the creation and grant of future Liens
to secure the obligations of the Company and the Subsidiary Guarantors hereunder
shall refer to the creation and grant of future Liens in favor of such
collateral agent for the benefit of the Trustee and the other creditors
participating in such Liens.
SECTION 10.02 RECORDING, REGISTRATION AND OPINIONS
(a) The Company and the Subsidiary Guarantors shall take or cause
to be taken all action required to perfect, maintain, preserve and protect the
Lien on and security interest in the Collateral granted by the Collateral
Documents (subject only to Liens expressly permitted by this Indenture and the
Collateral Documents), including without limitation, the filing of financing
statements, continuation statements and any instruments of further assurance, in
such manner and in such places as may be required by law fully to preserve and
protect the rights of the Holders and the Trustee under this Indenture and the
Collateral Documents to all property comprising the Collateral. The Company and
the Subsidiary Guarantors shall from time to time promptly pay all financing and
continuation statement recording, registration and/or filing fees, charges and
taxes relating to this Indenture and the Collateral Documents, any amendments
thereto and any other instruments of further assurance required hereunder or
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pursuant to the Collateral Documents. The Trustee shall not be responsible for
any failure to so register, file or record.
(b) The Company and the Subsidiary Guarantors shall furnish to
the Trustee on the Issue Date a customary Opinion of Counsel stating that this
Indenture, the Notes and the Collateral Documents have been duly authorized,
executed and delivered by, and constitute the valid, binding and enforceable
obligations of, the Company and the Subsidiary Guarantors. Such Opinion of
Counsel shall address perfection of the Liens contemplated by this Indenture and
the Collateral Documents and such other issues as the Trustee shall reasonably
request, and such Opinion of Counsel may be subject to customary exceptions. In
addition, the Company shall furnish to the Trustee, promptly after the execution
and delivery of this Indenture, an Opinion of Counsel in compliance with TIA
Section 314(b)(1) either (i) substantially to the effect that, in the opinion of
such counsel, this Indenture and the grant of the Liens on and security
interests in the Collateral intended to be made by the Collateral Documents and
all other instruments of further assurance, including, without limitation,
financing statements, have been properly recorded and filed to the extent
necessary to record or register (as the case may be), and if applicable, to
perfect the Liens on and security interests in the Collateral created by the
Collateral Documents, to the extent that, in the case of perfection of security
interests, a security interest may be perfected by filing under the Uniform
Commercial Code of the applicable jurisdiction, and reciting the details of such
action, and stating that as to the Liens and security interests created pursuant
to the Collateral Documents, such recordings, registrations and filings are the
only recordings, registrations and filings necessary to give notice thereof and
that no re-recordings, re-registrations or refilings are necessary to maintain
such notice (other than as stated in such opinion), or (ii) to the effect that,
in the opinion of such counsel, no such action is necessary to record or
register such Liens or to perfect such security interests. The Company or the
applicable Subsidiary Guarantor shall furnish to the Trustee, at the time of
execution and delivery of any additional Collateral Documents or any amendments
or supplements to existing Collateral Documents, an Opinion of Counsel either
substantially to the effect set forth in clause (i) of the immediately preceding
sentence (but relating only to such additional Collateral Documents or any
amendments or supplements to existing Collateral Documents and the related
After-Acquired Property) or to the effect set forth in clause (ii) thereof, and
to the further effect that such additional Collateral Documents or amendments or
supplements to existing Collateral Documents, as the case may be, (and, if
applicable, such Collateral Documents as amended and supplemented thereby) have
been duly authorized, executed and delivered by, and constitute the valid,
binding and enforceable obligations of the Company or the relevant Subsidiary
Guarantor, as the case may be, subject to customary exceptions.
(c) The Company or the applicable Subsidiary Guarantor shall
furnish to the Trustee, at the time of execution and delivery of this Indenture,
with respect to each Mortgage and Deed of Trust, (i) a policy of title insurance
(or a commitment to issue such policy) insuring (or committing to insure) the
Lien of such Mortgage and Deed of Trust as a valid first mortgage Lien, subject
only to Liens permitted under this Indenture or such Mortgage and Deed of Trust
on the real property and fixtures described therein which policy (or commitment)
shall (A) be issued by a reputable title company, (B) include such reinsurance
arrangements, if any (with provisions for direct access), as shall be customary
in the same general area and for transactions of this type and size, (C) have
been supplemented by such endorsements as are customary in the same general area
and for transactions of this type and size (and, in the case of any Mortgage and
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Deed of Trust executed after the Issue Date, endorsements substantially
identical to those included in the title policies for the then existing
Mortgages and Deeds of Trust) or, where such endorsements are not available at
commercially reasonable premium costs, opinion letters of reputable architects
or other reputable professionals (including endorsements or opinion letters on
matters relating to contiguity, first loss, and so-called comprehensive coverage
over covenants and restrictions, if available) and (D) contain only such
exceptions to title as shall be Permitted Liens (each, a "TITLE POLICY"), and
(ii) an Officers' Certificate stating that such Title Policies comply with the
requirements of this subsection (c). The aggregate amount of all such Title
Policies shall be not less than the principal amount of the Notes.
(d) The Company shall furnish to the Trustee on April 15 in each
year, beginning with April 15, 2002, an Opinion of Counsel, dated as of such
date, which complies with TIA Section 314(b)(2), either (i)(x) stating that, in
the opinion of such counsel, such action has been taken with respect to the
recording, registration, filing, re-recording, re-registration and refiling of
this Indenture and all supplemental indentures, financing statements,
continuation statements and other documents as is necessary to maintain the Lien
of the Collateral Documents and reciting with respect to the Liens on and
security interests in the Collateral the details of such action or referring to
prior Opinions of Counsel in which such details are given, and (y) stating that,
based on relevant laws as in effect on the date of such Opinion of Counsel, all
financing statements, continuation statements and other documents have been
executed and filed that are necessary as of such date and during the succeeding
24 months fully to maintain the Liens and security interests of the Holders and
the Trustee hereunder and under the Collateral Documents with respect to the
Collateral; provided that if there is a required filing of a continuation
statement within such 24 month period and such continuation statement is not
effective if filed at the time of the opinion, such opinion may so state and in
that case the Company shall cause a continuation statement to be timely filed so
as to maintain such Liens and security interests and shall provide a further
Opinion of Counsel to the effect of this clause (i) upon the filing of the
relevant continuation statement; or (ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain such Liens or security
interests.
SECTION 10.03 RELEASE OF COLLATERAL
(a) The Trustee shall not at any time release Collateral from the
Liens created by this Indenture and the Collateral Documents unless such release
is in accordance with the provisions of this Indenture and the Collateral
Documents.
(b) The Trustee shall release Collateral from the Liens
contemplated by this Indenture and the Collateral Documents if, when and to the
extent required by Section 10.05 hereof. Subsections (a), (b), (c), (d) and (e)
of Section 10.05 each constitutes a separate and independent basis for the
release of Collateral, and upon compliance with any such subsection, Collateral
shall be released as provided therein, without the necessity of compliance with
any other subsection of such Section.
(c) The release of any Collateral from the Lien of the Collateral
Documents shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Collateral Documents. To the extent
applicable, the Company shall cause TIA Section 314(d) relating to
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the release of property from the Lien of the Collateral Documents and relating
to the substitution therefor of any property to be subjected to the Lien of the
Collateral Documents to be complied with. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of the Company, except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by an
independent person, which person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
(d) If the Trustee at any time holds Liens in the Collateral
through a collateral agency arrangement (including, without limitation, the
collateral agency established in the Intercreditor Agreement as in effect as of
the Issue Date), unless the Trustee is the collateral agent thereunder, any
reference herein or in any Collateral Document to a release by the Trustee of
its Liens shall be deemed to refer to a release by the Trustee of its beneficial
interest in the Liens held by such collateral agent. Any such release by the
Trustee shall be binding between the Trustee and such collateral agent, but
shall not constitute a release by the collateral agent of such Liens.
SECTION 10.04 POSSESSION AND USE OF COLLATERAL
Subject to and in accordance with the provisions of this
Indenture and the Collateral Documents, so long as the Trustee has not exercised
rights or remedies with respect to the Collateral in connection with an Event of
Default that has occurred and is continuing, the Company and the Subsidiary
Guarantors shall have the right to remain in possession and retain exclusive
control of and to exercise all rights with respect to the Collateral (other than
Trust Monies held by the Trustee, other than monies or U.S. Government
Obligations deposited pursuant to Article 8 or Article 14, and other than as set
forth in the Collateral Documents and this Indenture), to operate, manage,
develop, lease, use, consume and enjoy the Collateral (other than Trust Monies
held by the Trustee, other than monies and U.S. Government Obligations deposited
pursuant to Article 8 or Article 14 and other than as set forth in the
Collateral Documents and this Indenture), to alter or repair any Collateral
consisting of machinery or equipment so long as such alterations and repairs do
not impair the Lien of the Collateral Documents thereon and to collect, receive,
use, invest and dispose of the reversions, remainders, interest, rents, lease
payments, issues, profits, revenues, proceeds and other income thereof.
SECTION 10.05 SPECIFIED RELEASES OF COLLATERAL
(a) Satisfaction and Discharge; Defeasance. The Company and the
Subsidiary Guarantors shall be entitled to obtain a full release of all of the
Collateral from the Liens of this Indenture and of the Collateral Documents upon
compliance with the conditions precedent set forth in Article 8 for Legal
Defeasance or Covenant Defeasance or upon compliance with the conditions
precedent set forth in Article 14 for satisfaction and discharge. Upon delivery
by the Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel, each to the effect that such conditions precedent have been complied
with (and which may be the same Officers' Certificate and Opinion of Counsel
required by Article 8 or Article 14, as applicable), together with such
documentation, if any, as may be required by the TIA (including, without
limitation, TIA Section 314(d)) prior to the release of such Collateral, the
Trustee shall forthwith take all necessary action (at the request of and the
expense of the Company) to release and reconvey to the Company and the
applicable Subsidiary Guarantors
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without recourse all of the Collateral, and shall deliver such Collateral in its
possession to the Company and the applicable Subsidiary Guarantors including,
without limitation, the execution and delivery of releases and satisfactions
wherever required.
(b) Dispositions of Collateral Permitted by Section 4.08. The
Company and the Subsidiary Guarantors, as the case may be, shall be entitled to
obtain a release of, and the Trustee shall release, items of Collateral (the
"RELEASED COLLATERAL") subject to an Asset Sale upon compliance with the
conditions precedent that the Company shall have delivered to the Trustee the
following:
(i) An order of the Company requesting release of Released
Collateral (a "COMPANY ORDER"), such Company Order (A) specifically
describing the proposed Released Collateral, (B) specifying the fair
market value of such Released Collateral on a date within 60 days of the
Company Order (the "VALUATION DATE"), (C) stating that the consideration
to be received is at least equal to the fair market value of the
Released Collateral, (D) stating that the release of such Released
Collateral will not impair the value of the remaining Collateral or
interfere with or impede the Trustee's ability to realize the value of
the remaining Collateral and will not impair the maintenance and
operation of the remaining Collateral, (E) confirming the sale of, or an
agreement to sell, such Released Collateral in a bona fide sale to a
Person that is not an Affiliate of the Company or, in the event that
such sale is to a Person that is such an Affiliate, confirming that such
sale is being made in accordance with Section 4.13, (F) certifying that
such Asset Sale complies with the terms and conditions of this
Indenture, including, without limitation, Section 4.08 hereof and (G) in
the event that there is to be a substitution of property for the
Collateral subject to the Asset Sale, specifying the property intended
to be substituted for the Collateral to be disposed of;
(ii) An Officers' Certificate certifying that (A) such sale
covers only the Released Collateral and complies with the terms and
conditions of this Indenture, including, without limitation, Section
4.08 hereof, (B) all proceeds from the sale of any of the Released
Collateral will be deposited in the Collateral Account, and all Net
Proceeds from the sale of any of the Released Collateral will be applied
pursuant to Section 4.08, (C) there is not and will not be a Default or
Event of Default in effect or continuing on the date thereof, the
Valuation Date or the date of such Asset Sale, (D) the release of the
Collateral will not result in a Default or Event of Default hereunder
and (E) all conditions precedent to such release have been complied
with;
(iii) All documentation required by the TIA (including,
without limitation, TIA Section 314(d)), if any, prior to the release of
Collateral by the Trustee, and, in the event there is to be a
substitution of property for the Collateral subject to the Asset Sale,
all documentation required by the TIA to effect the substitution of such
new Collateral and to subject such new Collateral to the Lien of the
relevant Collateral Documents, and all documents required by Section
10.01 hereof; and
(iv) An Opinion of Counsel stating that the documents that
have been or are therewith delivered to the Trustee in connection with
such release conform to the
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requirements of this Indenture and that all conditions precedent herein
provided for relating to such release have been complied with.
Upon compliance by the Company with the conditions precedent set
forth above, the Trustee shall cause to be released and reconveyed to the
Company or the applicable Subsidiary Guarantor the Released Collateral without
recourse by executing a release in the form provided by the Company or the
applicable Subsidiary Guarantor.
(c) Releases of Collateral Pursuant to the Intercreditor
Agreement. The Company and the Subsidiary Guarantors, as the case may be, shall
be entitled to obtain a release of, and the Trustee shall release, items of
Collateral when, if and to the extent the Trustee is required to do so pursuant
to the terms of the Intercreditor Agreement.
(d) Eminent Domain, Expropriation and Other Governmental Takings.
The Company and the Subsidiary Guarantors, as the case may be, shall be entitled
to obtain a release of, and the Trustee shall release, items of Collateral taken
by eminent domain or expropriation or sold pursuant to the exercise by the
United States of America or any State, municipality, province or other
governmental authority thereof of any right which it may then have to purchase,
or to designate a purchaser or to order a sale of, all or any part of the
Collateral, upon compliance with the conditions precedent that the Company shall
have delivered to the Trustee the following:
(i) An Officers' Certificate of the Company certifying that
(A) such Collateral has been taken by eminent domain or expropriation and the
amount of the award therefor, or that such property has been sold pursuant to a
right vested in the United States of America, or a State, municipality, province
or other governmental authority thereof to purchase, or to designate a
purchaser, or order a sale of such Collateral and the amount of the proceeds of
such sale, and (B) all conditions precedent to such release have been complied
with;
(ii) Cash equal to the amount of the award for such property
or the proceeds of such sale, shall be deposited with the Trustee in the
Collateral Account and held as Trust Monies subject to the disposition thereof
pursuant to Article 11 hereof; and
(iii) All documentation required by the TIA (including,
without limitation, TIA Section 314(d)), if any, prior to the release of
Collateral by the Trustee.
Upon compliance by the Company with the conditions precedent set
forth above, the Trustee shall cause to be released and reconveyed to the
Company or the applicable Subsidiary Guarantor without recourse the
aforementioned items of Collateral by executing a release in the form provided
by the Company or the applicable Subsidiary Guarantor.
(e) Released Property. So long as no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the Company
(acting on behalf of itself or any Subsidiary Guarantor) shall be entitled to
obtain a release of, and the Trustee shall release, Collateral (other than Trust
Monies and other than monies and U.S. Government Obligations deposited pursuant
to Article 8 or Article 14) specified by the Company ("RELEASED PROPERTY")
provided (i) the fair market value of the Released Property in any single
transaction, or series of
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related transactions, shall not exceed $100,000, and (ii) prior to granting such
release, the Company shall provide the Trustee with the following:
(i) A Company Order requesting release of Released
Property, such Company Order (A) specifically describing the proposed
Released Property, (B) specifying the fair market value of such Released
Property on a date within 60 days of the Company Order, (C) stating that
the release of such Released Property will not interfere with or impede
the Trustee's ability to realize the value of the remaining Collateral
and will not impair the maintenance and operation of the remaining
Collateral and (D) stating that the fair market value of such Released
Property does not exceed $100,000;
(ii) An Officers' Certificate certifying that no Default
or Event of Default has occurred and is continuing or will occur as a
result of the release of the Released Property, and all conditions
precedent to such release have been complied with; and
(iii) All documentation required by the TIA (including,
without limitation, TIA Section 314(d)), if any, prior to the release of
the Released Property by the Trustee.
Upon compliance by the Company with the conditions precedent set
forth above, the Trustee shall cause to be released and reconveyed to the
Company without recourse the aforementioned items of Collateral by executing a
release in the form provided by the Company.
SECTION 10.06 DISPOSITION OF COLLATERAL WITHOUT RELEASE
Notwithstanding the provisions of Section 10.05 and subject to
Sections 10.07 and 13.01 below, so long as no Default or Event of Default shall
have occurred and be continuing or would result therefrom, the Company and the
Subsidiary Guarantors may, without any prior release or consent by the Trustee,
conduct ordinary course activities in respect of the Collateral which do not
individually or in the aggregate adversely affect the value of the Collateral,
including (A) selling or otherwise disposing of, in any single transaction or
series of related transactions, any property subject to the Lien of this
Indenture or the Collateral Documents which has become worn out or obsolete and
which either has an aggregate fair market value of $100,000 or less or which is
replaced by property of substantially equivalent or greater value which becomes
subject to the Lien of the Collateral Documents as After-Acquired Property; (B)
abandoning, terminating, cancelling, releasing or making alterations in or
substitutions of any leases or contracts subject to the Lien of this Indenture
or any of the Collateral Documents; (C) surrendering or modifying any franchise,
license or permit subject to the Lien of this Indenture or any of the Collateral
Documents which it may own or under which it may be operating; (D) altering,
repairing, replacing, changing the location or position of and adding to its
structures, machinery, systems, equipment, fixtures, and appurtenances,
provided, however, that no change in the location of any such Collateral subject
to the Lien of any of the Collateral Documents shall be made which (1) removes
such property into a jurisdiction in which any instrument required by law to
preserve the Lien of any of the Collateral Documents on such property, including
all necessary financing statements and continuation statements, has not been
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recorded, registered or filed in the manner required by law to preserve the Lien
of and security interest in any of the Collateral Documents on such property,
(2) does not comply with the terms of this Indenture and the Collateral
Documents or (3) otherwise impairs the Lien of the Collateral Documents; (E)
demolishing, dismantling, tearing down or scrapping any Collateral or abandoning
any thereof if, in the good faith opinion of the Board of Directors of the
Company (as evidenced by a Board Resolution delivered to the Trustee if it
involves Collateral having a fair market value in excess of $100,000) such
demolition, dismantling, tearing down, scrapping or abandonment is in the best
interests of the Company, will not interfere with or impede the Trustee's
ability to realize the value of the remaining Collateral and will not impair the
maintenance and operation of the remaining Collateral, and the fair market value
and utility of the Collateral as an entirety, and the security for the Notes,
will not thereby be otherwise impaired; (F) granting a nonexclusive license of
any intellectual property; and (G) abandoning intellectual property which has
become obsolete and not used in the business of the Company or its Subsidiaries.
SECTION 10.07 FORM AND SUFFICIENCY OF RELEASE
In the event that the Company or any Subsidiary Guarantor has
sold, exchanged, or otherwise disposed of or proposes to sell, exchange or
otherwise dispose of any portion of the Collateral that under the provisions of
Section 10.05 or 10.06 may be sold, exchanged or otherwise disposed of by the
Company or any Subsidiary Guarantor, and the Company or such Subsidiary
Guarantor requests the Trustee to furnish a written disclaimer, release or
quitclaim of any interest in such property under this Indenture, the applicable
Subsidiary Guarantee of the Notes and the Collateral Documents, upon being
satisfied that the Company or such Subsidiary Guarantor is selling, exchanging
or otherwise disposing of the Collateral in accordance with the provisions of
Section 10.05 or 10.06 (which may include receipt of an Officers' Certificate
and Opinion of Counsel upon the request of the Trustee), the Trustee shall
execute, acknowledge and deliver to the Company or such Subsidiary Guarantor
such an instrument in the form provided by the Company, and providing for
release without recourse, promptly after satisfaction of the conditions set
forth herein for delivery of any such release and shall take such other action
as the Company or such Subsidiary Guarantor may reasonably request and is
necessary to effect such release. Notwithstanding the preceding sentence, all
purchasers and grantees of any property or rights purporting to be released
shall be entitled to rely upon any release executed by the Trustee hereunder as
sufficient for the purpose of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
and of the Collateral Documents.
SECTION 10.08 PURCHASER PROTECTED
No purchaser or grantee of any property or rights purporting to
be released shall be bound to ascertain the authority of the Trustee to execute
the release or to inquire as to the existence of any conditions herein
prescribed for the exercise of such authority.
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SECTION 10.09 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER
THE COLLATERAL DOCUMENTS
Subject to the provisions of the Collateral Documents:
(a) the Trustee may, in its sole discretion and without the
consent of the Holders, take all actions it deems necessary or appropriate in
order to (i) comply with, enforce and perform, from time to time, any of the
terms of the Intercreditor Agreement and the other Collateral Documents and (ii)
collect and receive any and all amounts payable in respect of the Obligations of
the Company and the Subsidiary Guarantors hereunder and under the Collateral
Documents; and
(b) the Trustee shall have power to institute and to maintain
such suits and proceedings as it may deem expedient to prevent any impairment of
the Collateral by any act that may be unlawful or in violation of the Collateral
Documents or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders in the Collateral (including the power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest thereunder or be prejudicial to
the interests of the Holders or of the Trustee).
SECTION 10.10 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE COLLATERAL DOCUMENTS
The Trustee is authorized to receive any funds for the benefit of
Holders distributed under the Collateral Documents, to apply such funds as
provided in this Indenture and the Collateral Documents, and to make further
distributions of such funds to the Holders in accordance with the provisions of
Article 11 and the other provisions of this Indenture.
ARTICLE 11
APPLICATION OF TRUST MONIES
SECTION 11.01 COLLATERAL ACCOUNT
On or before the Issue Date there shall be established and, at
all times hereafter until this Indenture shall have terminated, there shall be
maintained with the Trustee the Collateral Account. The Collateral Account shall
be established and maintained by the Trustee at its Corporate Trust Office. All
Trust Monies which are received by the Trustee shall be deposited in the
Collateral Account and thereafter shall be held by and under the sole dominion
and control of the Trustee for the benefit of the Holders as a part of the
Collateral and, upon any entry upon or sale or other disposition of the
Collateral or any part thereof pursuant to any of the Collateral Documents, said
Trust Monies shall be applied in accordance with Section 4.08; but prior to any
such entry, sale or other disposition, all or any part of the Trust Monies may
be withdrawn, and shall be released, paid or applied by the Trustee in
accordance with the terms of this Article.
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SECTION 11.02 WITHDRAWAL OF INSURANCE PROCEEDS AND CONDEMNATION AWARDS
To the extent that any Trust Monies consist of either (a) Net
Insurance Proceeds or (b) Net Awards, such Trust Monies, to the extent
consistent with the Intercreditor Agreement, may be withdrawn by the Company and
shall be paid by the Trustee upon a Company Request delivered to the Trustee to
reimburse the Company or the applicable Subsidiary Guarantor for expenditures
made, or to pay costs incurred, by the Company or such Subsidiary Guarantor in
connection with the repair, rebuilding or replacement of the Collateral
destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) An Officers' Certificate, dated not more then 30 days prior
to the date of the application for the withdrawal and payment of such Trust
Monies setting forth:
(i) that expenditures have been made, or costs incurred by
the Company or such Subsidiary Guarantor, as the case may be, in a specified
amount in connection with certain repairs, rebuildings and replacements of the
Collateral, which shall be briefly described, and stating the fair market value
thereof to the Company or such Subsidiary Guarantor at the date of the
acquisition thereof by the Company or such Subsidiary Guarantor;
(ii) that no part of such expenditures or costs has been or
is being made the basis for the withdrawal of any Trust Monies in any previous
or then pending application pursuant to this Section 11.02;
(iii) that no part of such expenditures or costs has been
paid out of either the proceeds of insurance upon any part of the Collateral not
required to be paid to the Trustee under the Collateral Documents or any award
for or the proceeds from any of the Collateral being taken not required to be
paid to the Trustee under Section 10.05(d), as the case may be;
(iv) that there is no outstanding Indebtedness, other than
costs for which payment is being requested, known to the Company, after due
inquiry, for the purchase price or construction of such repairs, rebuildings or
replacements, or for labor, wages, materials or supplies in connection with the
making thereof, which, if unpaid, might become the subject of a vendor's,
mechanics', laborers', materialmen's, statutory or other similar Lien upon any
such repairs, rebuildings or replacement, which Xxxx might, in the opinion of
the signers of such Officers' Certificate, materially impair the security
afforded by such repairs, rebuildings or replacements;
(v) that the property to be repaired, rebuilt or replaced is
necessary or desirable in the conduct of the Company's or such Subsidiary
Guarantor's business;
(vi) that the Company or such Subsidiary Guarantor has title
to such repairs, rebuildings and replacements that is substantially similar to
its title to the property destroyed, damaged or taken and that any Liens upon
such repairs, rebuildings and replacements are expressly permitted by this
Indenture and the applicable Collateral Documents;
(vii) that no Default or Event of Default shall have occurred
and be continuing; and
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(viii) that all conditions precedent herein provided for
relating to such withdrawal and payment have been complied with.
(b) All documentation required under the TIA (including, without
limitation, TIA Section 314(d));
(c) All documentation necessary to subject such repairs,
rebuildings or replacements to a valid first priority Lien and security interest
in favor of the Trustee (or, in the case of property subject to a Mortgage and
Deed of Trust, the Trustee or another trustee under such Mortgage and Deed of
Trust) for the benefit of the Holders pursuant to the Collateral Documents,
including, without limitation, all instruments, agreements, certificates,
Opinions of Counsel and documents required by Section 10.01; and
(d) An Opinion of Counsel complying with Section 10.02 hereof
and, in addition, substantially stating:
(i) that the instruments that have been or are therewith
delivered to the Trustee conform to the requirements of this Indenture and the
other Collateral Documents, and that, upon the basis of such Company Order and
the accompanying documents specified in this Section 11.02, all conditions
precedent herein provided for relating to such withdrawal and payment have been
complied with, and the Trust Monies whose withdrawal is then requested may be
paid over under this Section 11.02;
(ii) that the relevant Collateral Documents create a valid,
binding and enforceable Lien on and security interest in such repairs,
rebuildings and replacements in favor of the Trustee in favor of the Holders
and, to the extent that a security interest in any such property may be
perfected under the relevant Uniform Commercial Code, a perfected security
interest in such property; and
(iii) that all the Company's or such Subsidiary Guarantor's
right, title and interest in and to said repairs, rebuilding or replacements, or
combination thereof are then subject to the Lien of this Indenture and the
relevant Collateral Documents.
Upon compliance with the foregoing provisions of this Section
11.02 and Section 11.01, the Trustee shall, upon receipt of a Company Order, pay
an amount of Trust Monies of the character aforesaid equal to the amount of the
expenditures or costs stated in the Officers' Certificate required by clause (i)
of paragraph (a) of this Section 11.02, or the fair market value to the Company
or the applicable Subsidiary Guarantor of such repairs, rebuildings and
replacements stated in such Officers' Certificate (or in an Independent
Appraiser's or Independent Financial Advisor's certificate, if required by the
TIA), whichever is less; provided, however, that notwithstanding the above, so
long as no Default or Event of Default shall have occurred and be continuing, in
the event that any Net Insurance Proceeds or Net Awards for such property or
proceeds of such sale do not exceed $25,000 and, in the good faith estimate of
the Company, such destruction or damage resulting in such Net Insurance Proceeds
or such taking or sale resulting in such Net Awards does not detrimentally
affect the value or use of the applicable Collateral in any material respect,
upon delivery to the Trustee of an Officers' Certificate to such effect and
compliance with Section 10.01, the Trustee shall release to the Company or the
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applicable Subsidiary Guarantor such Net Insurance Proceeds or Net Awards for
such property or proceeds of such sale, free of the Lien hereof and of the
Collateral Documents.
SECTION 11.03 WITHDRAWAL OF NET CASH PROCEEDS TO FUND AN ASSET SALE OFFER
To the extent that any Trust Monies consist of proceeds of
Collateral received by the Trustee pursuant to the provisions of Section 4.08
hereof and an Asset Sale Offer has been made in accordance therewith, such Trust
Monies may be withdrawn by the Company and shall be paid by the Trustee to the
Paying Agent for application in accordance with Section 4.08 upon a Company
Order to the Trustee and upon receipt by the Trustee of the following:
(a) An Officers' Certificate, dated not more than five days prior
to the Asset Sale Purchase Date stating:
(i) that no Default or Event of Default shall have occurred
and be continuing;
(ii) (x) that such Trust Monies constitute proceeds of
Collateral, (y) that pursuant to and in accordance with Section 4.08, the
Company has made an Asset Sale Offer and (z) the Available Amount to be applied
to the repurchase of the Notes pursuant to the Asset Sale Offer;
(iii) the Asset Sale Purchase Date; and
(iv) that all conditions precedent and covenants herein
provided for relating to such application of Trust Monies have been complied
with;
(b) All documentation, if any, required under TIA Section 314(d);
and
Upon compliance with the foregoing provisions of this Section
11.03, the Trustee shall apply the Trust Monies as directed and specified by
such Company Order, subject to Section 4.08.
SECTION 11.04 WITHDRAWAL OF TRUST MONIES FOR INVESTMENT IN REPLACEMENT ASSETS
In the event the Company intends to reinvest proceeds of an Asset
Sale in Replacement Assets (the "RELEASED TRUST MONIES"), such proceeds
constituting Trust Monies may be withdrawn by the Company and shall be paid by
the Trustee to the Company upon a Company Order to the Trustee and upon receipt
by the Trustee of the following:
(a) a notice signed by the Company, which shall (i) refer to this
Section 11.04, (ii) contain all documents referred to below, (iii) describe with
particularity the Released Trust Monies, (iv) describe with particularity the
Replacement Assets to be invested in with respect to the Released Trust Monies
and (v) be accompanied by a counterpart of the instruments proposed to give
effect to the release fully executed and acknowledged (if applicable) by all
parties thereto other than the Trustee;
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(b) An Officers' Certificate certifying that (i) such Trust
Monies constitute Net Proceeds, (ii) the release of the Released Trust Monies
complies with the terms and conditions of this Indenture, (iii) there is no
Default or Event of Default in effect or continuing on the date thereof, (iv)
the release of the Released Trust Monies will not result in a Default or Event
of Default hereunder and (v) all conditions precedent to such release have been
complied with;
(c) All documentation required under the TIA (including, without
limitation, TIA Section 314(d));
(d) All documentation necessary to subject such Replacement
Assets to a valid first priority Lien and security interest (subject only to
Liens expressly permitted by this Indenture or the relevant Collateral
Documents) in favor of the Trustee for the benefit of the Holders pursuant to
the Collateral Documents, including, without limitation, all instruments,
agreements, Opinions of Counsel, certificates and other documents required by
Section 10.01; and
(e) An Opinion of Counsel stating:
(i) that the documents that have been or are therewith
delivered to the Trustee in connection with an investment in Replacement Assets
conform to the requirements of this Indenture and that all conditions precedent
herein provided for relating to such application of Trust Monies have been
complied with; and
(ii) to the extent that such Replacement Assets were acquired
with proceeds, the relevant Collateral Documents create a valid, binding and
enforceable Lien on and security interest in such Replacement Assets in favor of
the Trustee for the benefit of the Holders and, to the extent that a security
interest in any such Replacement Assets may be perfected under the relevant
Uniform Commercial Code, a perfected security interest in such property.
Upon compliance with the foregoing provisions, the Trustee shall
apply the Released Trust Monies as directed and specified by the Company.
SECTION 11.05 INVESTMENT OF TRUST MONIES
So long as no Default or Event of Default shall have occurred and
is continuing, all or any part of any Trust Monies held by the Trustee shall
from time to time be invested or reinvested by the Trustee in any Cash
Equivalents pursuant to a Company Order, which shall specify the Cash
Equivalents in which such Trust Monies shall be invested and shall certify that
such investments constitute Cash Equivalents and the Trustee shall sell any such
Cash Equivalent only upon receipt of a Company Order specifying the particular
Cash Equivalent to be sold. So long as no Default or Event of Default occurs and
is continuing, any interest or dividends accrued, earned or paid on such Cash
Equivalents (in excess of any accrued interest or dividends paid at the time of
purchase) that may be received by the Trustee shall be forthwith paid to the
Company. Such Cash Equivalents shall be held by the Trustee as a part of the
Collateral, subject to the same provisions hereof as the cash used by it to
purchase such Cash Equivalents.
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The Trustee shall not be liable or responsible for any loss
resulting from such investments or sales except only for its own negligent
action, its own negligent failure to act or its own willful misconduct in
complying with this Section 11.05.
ARTICLE 12
SUBSIDIARY GUARANTEES
SECTION 12.01 SUBSIDIARY GUARANTEES
Subject to the provisions of this Article 12, each Subsidiary
Guarantor (including, without limitation, each Subsidiary Guarantor that becomes
a party to this Indenture after the Issue Date by execution and delivery of a
supplemental indenture), jointly and severally, hereby unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
(including, without limitation, all Additional Notes) and to the Trustee and its
successors and assigns, that: (a) the principal of, and premium, if any, and
interest on the Notes shall be duly and punctually paid in full when due,
whether at maturity, by acceleration or otherwise, and interest on overdue
principal, and premium, if any, and (to the extent permitted by law) interest on
any interest, if any, on the Notes and all other obligations of the Company to
the Holders or the Trustee hereunder or under the Notes (including fees,
expenses or other) shall be promptly paid in full or performed, all in
accordance with the terms hereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, the same shall
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise (collectively, the "GUARANTEE OBLIGATIONS"). Failing payment when due
of any Guarantee Obligation or failing performance of any other obligation of
the Company to the Holders, for whatever reason, each Subsidiary Guarantor shall
be obligated to pay, or to perform or to cause the performance of, the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Trustee or the Holders of Notes to accelerate the Guarantee
Obligations of each Subsidiary Guarantor hereunder in the same manner and to the
same extent as the Obligations of the Company. Each Subsidiary Guarantor hereby
agrees that its Guarantee Obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any thereof, the entry of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Subsidiary Guarantor hereby waives and
relinquishes: (a) any right to require the Trustee, the Holders or the Company
(each, a "BENEFITTED PARTY") to proceed against the Company, the Subsidiaries or
any other Person or to proceed against or exhaust any security held by a
Benefitted Party at any time or to pursue any other remedy in any secured
party's power before proceeding against the Subsidiary Guarantors; (b) any
defense that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefitted Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest and
notice of any kind (except as expressly required by this Indenture), including
but not limited to notice of the existence, creation or incurring of any new or
additional Indebtedness or obligation or of any action or non-action on the part
of the Subsidiary Guarantors, the Company, the Subsidiaries, any Benefitted
Party, any creditor of the Subsidiary Guarantors, the Company
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or the Subsidiaries or on the part of any other Person whomsoever in connection
with any obligations the performance of which are hereby guaranteed; (d) any
defense based upon an election of remedies by a Benefitted Party, including but
not limited to an election to proceed against the Subsidiary Guarantors for
reimbursement; (e) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (f) any defense
arising because of a Benefitted Party's election, in any proceeding instituted
under the Bankruptcy Law, of the application of Section 1111(b)(2) of the
Bankruptcy Code; and (g) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code. The Subsidiary
Guarantors hereby covenant that the Subsidiary Guarantees shall not be
discharged except by payment in full of all Guarantee Obligations, including the
principal, premium, if any, and interest on the Notes and all other costs
provided for under this Indenture, the Collateral Documents or as provided in
Section 8.01.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or the Subsidiary Guarantors, or any
trustee or similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by the Company or the Subsidiary
Guarantors to the Trustee or such Holder, the Subsidiary Guarantees, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each of the Subsidiary Guarantors agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guarantee
Obligations hereby until payment in full of all such obligations. Each
Subsidiary Guarantor agrees that, as between it, on the one hand, and the
Holders of Notes and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes hereof, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guarantee
Obligations, and (y) in the event of any acceleration of such obligations as
provided in Article 6 hereof, such Guarantee Obligations (whether or not due and
payable) shall forthwith become due and payable by such Subsidiary Guarantor for
the purpose of the Subsidiary Guarantee.
SECTION 12.02 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
This Indenture or a supplemental indenture in the form attached
hereto as Exhibit B shall be executed on behalf of each Subsidiary Guarantor by
the Chairman of the Board, any Vice Chairman, the President or one of the Vice
Presidents of such Xxxxxxxxxx Xxxxxxxxx. A notation of Subsidiary Guarantee may,
but need not, be placed on each Note. Any such notation may, but need not, be
executed by one or more Subsidiary Guarantors.
Each of the Subsidiary Guarantors agrees that the Subsidiary
Guarantees set forth in this Article 12 and in any supplemental indentures will
remain in full force and effect and apply to all the Notes notwithstanding any
failure to endorse on each Note a notation of the Subsidiary Guarantees, and
notwithstanding any failure of any Subsidiary Guarantor to execute such
notation.
If an Officer whose facsimile signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note on which the
Subsidiary Guarantees are endorsed, the Subsidiary Guarantees shall be valid
nevertheless.
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The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantees
set forth in this Indenture and in any supplemental indentures on behalf of the
Subsidiary Guarantors, notwithstanding any failure to endorse a notation of such
Subsidiary Guarantees on such Note, and notwithstanding any failure of any
Subsidiary Guarantor to execute such notation.
SECTION 12.03 SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Nothing contained in this Indenture or in the Notes shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor, or shall prevent the transfer of all or
substantially all of the assets of a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor. Upon any such consolidation, merger, transfer or
sale, the Subsidiary Guarantee of such transferor Subsidiary Guarantor shall no
longer have any force or effect.
(b) Subject to the provisions of Section 12.04, each Subsidiary
Guarantor shall not, in a single transaction or series of related transactions,
consolidate or merge with or into (whether or not such Subsidiary 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 another Person other than the Company or
another Subsidiary Guarantor unless (i) the Person formed by or surviving any
such consolidation or merger (if other than such Subsidiary Guarantor) or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (the "SURVIVING ENTITY") assumes all the
Guarantee Obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee; (ii) immediately after such transaction
no Default or Event of Default exists; (iii) the Surviving Entity (A) shall have
Consolidated Net Worth immediately after the transaction equal to or greater
than the Consolidated Net Worth of such Subsidiary Guarantor immediately
preceding the transaction and (B) the Company shall, at the time of such
transaction and after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.10; (iv) the
Surviving Entity causes such amendments, supplements or other instruments to be
filed and recorded in such jurisdictions as may be required by applicable law to
preserve and protect the Lien of the Collateral Documents in the Collateral
owned by or transferred to the Surviving Entity, together with such financing
statements as may be required by applicable law to preserve and protect the Lien
of the Collateral Documents in the Collateral owned by or transferred to the
Surviving Entity, together with such financing statements as may be required to
perfect any security interests in such Collateral which may be perfected by the
filing of a financing statement under the Uniform Commercial Code of the
relevant states; (v) the Collateral owned by or transferred to the Surviving
Entity shall (1) continue to constitute Collateral under the Indenture and the
Collateral Documents, (2) shall be subject to the Lien in favor of the Trustee
for the benefit of the holders of the Notes and (3) shall not be subject to any
Lien other than Collateral Permitted Liens; (vi) the property and assets of the
Person which is merged or consolidated with or into the Surviving Entity, to the
extent that they are property and assets of types which would constitute
Collateral under the Collateral Documents, shall be treated as After-Acquired
Property and the Surviving Entity shall take such actions as may be necessary to
cause such property and
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assets to be made subject to the Lien of the Collateral Documents in the manner
and to the extent required in the Indenture; and (vii) such Subsidiary Guarantor
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel addressed to the Trustee, each stating that such consolidation, merger,
sale, assignment, transfer, lease, conveyance or disposition and such
supplemental indenture, if any, comply with this Indenture and that such
supplemental indenture, and this Indenture as supplemented thereby, are
enforceable. In case of any such consolidation, merger or transfer of assets and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Subsidiary Guarantees of the Notes and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by such
Subsidiary Guarantor, such successor corporation shall succeed to and be
substituted for such Subsidiary Guarantor with the same effect as if it had been
named herein as a Subsidiary Guarantor. Such successor corporation thereupon may
cause to be signed any or all of the notations of Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Subsidiary
Guarantees issued after the Issue Date shall in all respects have the same legal
rank and benefit under this Indenture as the Subsidiary Guarantees theretofore
and thereafter issued in accordance with the terms of this Indenture as though
all of such Subsidiary Guarantees had been issued at the Issue Date.
(c) The Trustee, subject to the provisions of Section 12.04
hereof, shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption of Guarantee Obligations, comply with the
provisions of this Section 12.03. Such Officers' Certificate and Opinion of
Counsel shall comply with the provisions of Section 13.05.
SECTION 12.04 RELEASES FOLLOWING SALE OF ASSETS
Notwithstanding Section 12.03 hereof, in the event of a sale or
other disposition of all or substantially all of the assets of any Subsidiary
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all (or substantially all) of the Capital Stock of any Subsidiary
Guarantor, which sale or other disposition otherwise complies with the other
terms of this Indenture, then such Subsidiary Guarantor (in the event of a sale
or other disposition, by way of such a merger, consolidation or otherwise, of
all or substantially all of the Capital Stock of such Subsidiary Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Subsidiary
Guarantor) shall be released from and relieved of any Guarantee Obligations
under its Subsidiary Guarantee; provided that the Net Proceeds from such sale or
other disposition are treated in accordance with the provisions of Section 4.08
hereof. Upon delivery by the Company to the Trustee of an Officers' Certificate
and Opinion of Counsel, to the effect that such sale or other disposition was
made by the Company in accordance with the provisions of this Indenture,
including without limitation Section 4.08 hereof, the Trustee shall execute any
documents reasonably required in order to evidence the release of any such
Subsidiary Guarantor from its Guarantee Obligations under its Subsidiary
Guarantee. Any Subsidiary Guarantor not released from its Guarantee Obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other Obligations of any
Subsidiary Guarantor under this Indenture as provided in this Article 12.
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SECTION 12.05 LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY
Each Subsidiary Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
Guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
Guarantee Obligations of such Subsidiary Guarantor under this Article 12 shall
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the Guarantee Obligations of such other
Subsidiary Guarantor under this Article 12, result in the Guarantee Obligations
of such Subsidiary Guarantor under the Subsidiary Guarantee of such Subsidiary
Guarantor not constituting a fraudulent transfer or conveyance.
SECTION 12.06 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE
SUBSIDIARY GUARANTORS
(a) For purposes of any provision of this Indenture which
provides for the delivery by any Subsidiary Guarantor of an Officers'
Certificate and/or an Opinion of Counsel, the definitions of such terms in
Section 1.01 shall apply to such Subsidiary Guarantor as if references therein
to the Company were references to such Subsidiary Guarantor.
(b) Any request, direction, order or demand which by any
provision of this Indenture is to be made by any Subsidiary Guarantor, shall be
sufficient if evidenced as described in Section 13.02 as if references therein
to the Company were references to such Subsidiary Guarantor.
(c) Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Notes to or on any Subsidiary Guarantor may be given or served as described
in Section 13.02 as if references therein to the Company were references to such
Subsidiary Guarantor.
(d) Upon any demand, request or application by any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, such
Subsidiary Guarantor shall furnish to the Trustee such certificates and opinions
as are required in Section 7.02 and 13.04 hereof as if all references therein to
the Company were references to such Subsidiary Guarantor.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
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SECTION 13.02 NOTICES
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
RBX Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Trustee:
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Group
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
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SECTION 13.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she 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 satisfied; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
SECTION 13.06 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
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If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior to
the first solicitation of Holders generally in connection therewith and no later
than the date of such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Notes then
outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for this
purpose the Notes then outstanding shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 13.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any Obligations of the Company under the Notes, this Indenture or for any
claim based on, in respect of, or by reason of, such Obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 13.08 GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 13.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 13.10 SUCCESSORS
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
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SECTION 13.11 SEVERABILITY
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12 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 13.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 13.14 INTERCREDITOR AGREEMENT
Notwithstanding anything to the contrary contained herein (but
subject to Section 13.01 hereof), all of the provisions of Articles 10 and 11
are subject to the Intercreditor Agreement.
ARTICLE 14
SATISFACTION AND DISCHARGE
SECTION 14.01 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall be discharged and shall cease to be of
further effect as to all Notes issued hereunder (other than (1) the Company's
obligations with respect to outstanding Notes under Article 2 and Section 4.02
hereof, (2) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith, and (3) this
Article 14), when
(i) either:
(A) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or
(B) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise and the Company has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient without consideration of any
reinvestment of interest,
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to pay and discharge the entire indebtedness on the Notes not delivered
to the Trustee for cancellation for principal, premium, if any, and
accrued interest to the date of maturity or redemption;
(ii) as to Section 14.01(i)(B) only, no Default or Event
of Default shall have occurred and be continuing on the date of the deposit or
shall occur as a result of the deposit (other than Defaults and Events of
Default related to or arising out of incurrences of Indebtedness and Liens and
customary documentation related thereto) and the deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any Subsidiary Guarantor is a party or by which the Company
or any Subsidiary Guarantor is bound;
(iii) the Company has paid or caused to be paid all other
sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the payment
of the Notes at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee, each stating that all conditions
precedent to satisfaction and discharge have been satisfied.
SECTION 14.02 APPLICATION OF TRUST MONEY
Subject to the provisions of Section 8.06 hereof, all money
deposited with the Trustee pursuant to Section 14.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
Persons entitled thereto, of the principal (and premium, if any), and interest
for whose payment such money has been deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 14.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no such deposit had occurred pursuant to
Section 14.01 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
[Signatures on following pages]
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SIGNATURES
Dated as of _________ ___, 2001 RBX CORPORATION
By: _____________________________
Name: _____________________________
Title: _____________________________
RBX INDUSTRIES, INC.
By: _____________________________
Name: _____________________________
Title: _____________________________
STATE STREET BANK AND TRUST COMPANY
By: _____________________________
Authorized Signatory
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EXHIBIT A
(Face of Note) CUSIP No: 000000XX0 [Restricted]
000000XX0 [Unrestricted]
12% Senior Secured Notes due 2006
No. $__________
RBX CORPORATION
promises to pay to _________________________ or registered assigns, the
principal sum of ______________________ Dollars indicated on the "Schedule of
Increase of, and Exchanges of Interests in, the Global Note" attached hereto on
August 15, 2006.
Interest Payment Dates: February 15 and August 15
Record Dates: February 15 and August 15
Dated: ___________ ____, 200_
RBX CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
Certificate of Authentication:
This is one of the [GLOBAL] Notes
referred to in the within-mentioned Indenture:
State Street Bank and Trust Company
By:_________________________________
Authorized Signatory
Dated: __________ ____, 200_
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(Back of Note)
12% Senior Secured Notes due 2006
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.] (1)
[THIS NOTE HAS BEEN ISSUED IN AN OFFERING PURSUANT TO 11 U.S.C.
Section 1145 ("SECTION 1145") TO A PERSON OR ENTITY WHO MAY BE DEEMED TO BE (1)
AN "UNDERWRITER" WITHIN THE MEANING OF SECTION 1145 OR (2) AN "AFFILIATE" OR
"CONTROL PERSON" OF THE ISSUER WITHIN THE MEANING OF THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). AS SUCH, THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF
______________________
(1) To be included only on Global Notes deposited with DTC as Depositary.
(2) To be included only on Global Notes deposited with DTC as Depositary.
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(1) AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE IN ACCORDANCE WITH THE
SECURITIES ACT AND ANY OTHER APPLICABLE STATE OR FEDERAL SECURITIES LAWS, (2) AN
EXEMPTION FROM SUCH REGISTRATION (BASED ON AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER AND THE REGISTRAR FOR THIS NOTE, IF SO REQUESTED BY THE ISSUER OR THE
REGISTRAR) OR (3) COMPLIANCE WITH THE APPLICABLE REQUIREMENTS OF RULE 144
PROMULGATED UNDER THE SECURITIES ACT (BASED ON AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER AND THE REGISTRAR FOR THIS NOTE, IF SO REQUESTED BY
THE ISSUER OR THE REGISTRAR).](3)
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. RBX Corporation, a Delaware corporation (the "COMPANY"),
promises to pay interest on the principal amount of this Note at 12% per annum
from the date of issuance until maturity; provided, however, that at the option
of the Company, so long as no Default or Event of Default is then continuing,
interest payments due on or prior to ___________ ___, 2004, may be paid in the
form of Additional Notes at a rate of 12% per annum in lieu of cash. The Company
will pay interest semi-annually on __________ and __________ of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE") to the holder of record on the immediately preceding
________ or __________ (each, a "RECORD DATE"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance, or in case of Additional
Notes, from the date of issuance of such Additional Notes; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a Record Date and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be _______ ___,
200_. The Company shall pay interest (including Accrued Bankruptcy Interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 2% per annum in excess of the
then applicable interest rate on the Notes to the extent lawful (the "DEFAULT
RATE"). In addition, the Company shall pay interest (including Accrued
Bankruptcy Interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the Default Rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the Record Date next preceding the Interest Payment Date,
even if such Notes are cancelled after such Record Date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes will be payable as to principal,
premium and interest at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company,
______________________
(3) To be included only on Transfer Restricted Notes
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payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of and interest and premium on all Global Notes and all other Notes
the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent.
If the Company elects to exercise its right to make an interest payment
in the form of Additional Notes, the Company must deliver to the Trustee, not
less than 10 nor more than 45 days prior to the Record Date for the Interest
Payment Date on which Additional Notes will be issued, an Officers' Certificate
notifying the Trustee of its election to pay interest through the issuance of
Additional Notes and the aggregate amount of such Additional Notes to be issued,
and specifying the amount of Additional Notes to be issued through the issuance
of Additional Definitive Notes, the amount to be issued through increases in the
Restricted Global Note and the amount to be issued through increases in the
Unrestricted Global Note. On or after the date of such Officers' Certificate but
not less than 10 days prior to the relevant Interest Payment Date, the Company
must deliver to the Trustee any Additional Definitive Notes to be issued, which
Additional Definitive Notes must have been duly executed by the Company in the
manner provided in Section 2.02 of the Indenture. If the Company has satisfied
the conditions set forth herein for the payment of interest in the form of
Additional Notes on the relevant Interest Payment Date, the Trustee will record
increases in the Global Notes and authenticate Additional Definitive Notes, as
appropriate, in the aggregate principal amounts required to pay such interest.
Each Additional Note is an additional obligation of the Company and the
Subsidiary Guarantors and shall be governed by, and entitled to the benefits of,
the Indenture and shall be subject to the terms of the Indenture (including the
guarantee provisions) and shall rank pari passu with and be subject to the same
terms (including the rate of interest from time to time payable thereon) as this
Note (except, as the case may be, with respect to the issuance date and
aggregate principal amount) and shall have the benefit of all Liens securing
Notes.
3. Paying Agent and Registrar. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of August __, 2001 among the Company, the Subsidiary Guarantors and the Trustee
(as such may be amended or supplemented from time to time, the "INDENTURE"). The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are secured obligations of the Company limited to $25,000,000
in aggregate principal amount (except as otherwise provided in Section 2 of this
Note relating to payment of interest by issuance of Additional Notes).
5. Optional Redemption. The Company shall have the option to redeem the
Notes, in whole or in part, at any time and from time to time, at the redemption
price of 101% of
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principal amount, plus accrued and unpaid interest thereon, if any, to the
applicable redemption date.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder whose Notes are to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
6. Mandatory Redemption. The Company shall not be required to make
mandatory redemption payments with respect to the Notes.
7. Repurchase Offers.
(a) Change of Control Offer. Upon the occurrence of a Change of
Control, the Company shall offer to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "CHANGE OF CONTROL OFFER") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase (the "CHANGE OF CONTROL PAYMENT").
Within 30 days following any Change of Control, the Company shall mail a notice
to each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase Notes pursuant to the procedures
required by the Indenture and described in such notice. The Company shall 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 and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control.
(b) Asset Sale Offer. The Company shall not, and shall not
permit any of its Subsidiaries to, engage in an Asset Sale in excess of
$1,000,000 unless (a) the Intercreditor Agreement is in effect and does not
prohibit such Asset Sale and expressly provides that the Trustee has no right to
restrict or permit, or approve or disapprove, such Asset Sale, or (b) in all
other cases (i) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value, and in the case of a lease of assets, a lease providing for rent and
other conditions which are no less favorable to the Company (or the Subsidiary,
as the case may be) in any material respect than the then prevailing market
conditions (evidenced in each case by a resolution of the Board of Directors of
such entity set forth in an Officers' Certificate delivered to the Trustee) of
the assets or Equity Interests sold or otherwise disposed of, (ii) at least 75%
(100% in the case of lease payments) of the consideration therefor received by
the Company or such Subsidiary is in the form of cash or Cash Equivalents;
provided that the amount of any notes or other obligations received by the
Company or any such Subsidiary from such transferee that are promptly, but in no
event more than 30 days after receipt, converted by the Company or such
Subsidiary into cash (to the extent of the cash received), shall be deemed to be
cash for purposes of this provision, (iii) subject to the Intercreditor
Agreement, if such Asset Sale involves the disposition of Collateral, the
Company or such Subsidiary has complied with Articles 10 and 11 of the
Indenture, and (iv) the Company or the Subsidiary, as the case may be, applies
the Net Proceeds as provided in the following paragraph.
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Subject to the Intercreditor Agreement, any such Net Proceeds
may, at the option of the Company, be applied within 180 days of the related
Asset Sale as follows:
(i) to the acquisition of another business or the
acquisition of other long-term assets, in each case, in the same
or a similar line of business as the Company or any of its
Subsidiaries was engaged in on the Issue Date or any reasonable
extensions or expansions thereof ("REPLACEMENT ASSETS");
provided, that any Replacement Assets shall be owned by the
Company or by the Subsidiary Guarantor that made the Asset Sale
and shall not be subject to any Liens except Collateral
Permitted Liens (and the Company or such Subsidiary Guarantor,
as the case may be, shall execute and deliver to the Trustee
such Collateral Documents or other instruments as shall be
necessary to cause such Replacement Assets to become subject to
a Lien in favor of the Trustee, for the benefit of the holders
of the Notes, securing its obligations under the Notes or its
Subsidiary Guarantee, as the case may be, and otherwise shall
comply with the provisions of the Indenture applicable to
After-Acquired Property); or
(ii) to reimburse the Company or its Subsidiaries for
expenditures made, and costs incurred, to repair, rebuild,
replace or restore property subject to loss, damage or taking to
the extent that the Net Proceeds consist of Net Insurance
Proceeds received on account of such loss, damage or taking.
Any portion of such Net Proceeds that is not used as described
in subparagraphs (i) or (ii) above within such 180-day period shall constitute
"EXCESS PROCEEDS" subject to disposition as provided below. When the aggregate
amount of Excess Proceeds exceeds $3,000,000, the Company shall be required to
make an offer to all Holders (an "ASSET SALE OFFER") to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase, in accordance with the procedures set forth in the Indenture. To the
extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000,
except that Notes may be originally issued in such denominations as may be
required under the Reorganization Plan or Section 4.01 of the Indenture and may
be subsequently transferred in such denominations. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate
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endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. Neither the
Company nor the Registrar will be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.02 of the Indenture and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part or (C) to register the transfer of or to exchange a Note
between a Record Date and the next succeeding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes or any Collateral Document may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes, and, subject to Sections 6.04 and 6.07 of the
Indenture, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded), or compliance with any provision of the Indenture, the
Notes or any Collateral Document, may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Notes. Without the
consent of any Holder of a Note, the Indenture, the Notes or the Collateral
Documents may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA.
11. Defaults and Remedies. Each of the following constitutes an Event of
Default under the Indenture: (i) default for 15 days in the payment when due of
interest on the Notes; (ii) default in payment when due of the principal of or
premium, if any, on the Notes; (iii) failure by the Company or any of its
Subsidiaries to comply Sections 4.07, 4.08, 4.09, 4.10 or 4.14 of the Indenture;
(iv) failure by the Company or any of its Subsidiaries for 30 days after notice
to comply with any of its other agreements in the Indenture, the Notes, the
Subsidiary Guarantees or the Collateral Documents; (v) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the Issue Date, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness (a
"PAYMENT DEFAULT") or (b) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other Indebtedness as to
which there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $2,500,000 or more; (vi) failure by the Company or any
of its Significant Subsidiaries to pay final judgments aggregating in excess of
$2,500,000, which judgments are not paid, discharged or stayed for a period of
30 days; (vii) default by the Company or any Subsidiary in the performance of
the Collateral Documents which adversely affects the enforceability or validity
of the Lien in the Collateral or which adversely affects the condition or value
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of the Collateral in any material respect, any repudiation or disaffirmation by
the Company or any Subsidiary of its Obligations under the Collateral Documents
or the determination in a judicial proceeding that any Collateral Document is
unenforceable or invalid against the Company or any of its Subsidiaries for any
reason; (viii) except as permitted by the Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Subsidiary Guarantor,
or any Person acting on behalf of any Subsidiary Guarantor, will deny or
disaffirm its obligations under its Subsidiary Guarantee; and (ix) certain
events of bankruptcy or insolvency with respect to the Company or any of its
Subsidiaries. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, premium, if any, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
12. Ranking, Subsidiary Guarantees and Security. The Notes will rank
pari passu with all Indebtedness of the Company that is not subordinated to the
Notes, including borrowings under the New Credit Agreement. The Notes will rank
senior to any Indebtedness of the Company that is subordinated to the Notes. The
Notes will be unconditionally guaranteed on a senior secured basis by each of
the Subsidiary Guarantors. The Subsidiary Guarantees will rank pari passu with
all Indebtedness of the Subsidiaries Guarantors that is not subordinated to such
Subsidiary Guarantees, including guarantees of borrowings under the New Credit
Agreement. The Subsidiary Guarantees will rank senior to any Indebtedness of the
Subsidiary Guarantors that is subordinated to such Subsidiary Guarantees. The
Notes and the Subsidiary Guarantees will be secured by second priority Liens on
substantially all of the assets of the Company and the Subsidiary Guarantors and
the proceeds thereof, whether now owned or hereafter acquired.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
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16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. Additional Rights of Holders of Transfer Restricted Notes. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transferred Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of the Issue Date, among the Company, the
Subsidiary Guarantors and the holders of beneficial interests in the Restricted
Global Note (as such may be amended from time to time, the "REGISTRATION RIGHTS
AGREEMENT").
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture, the Collateral Documents and/or the
Registration Rights Agreement. Requests may be made to:
RBX Corporation
0000 XxxxxxXxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________________ to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date:______________________________
Your Signature:____________________________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.07 or 4.08 of the Indenture, check the box below:
[ ] Section 4.07 [ ] Section 4.08
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.07 or Section 4.08 of the Indenture, state the
amount you elect to have purchased: $___________
Date:__________________ Your Signature:______________________
(Sign exactly as your name appears on
the Note)
Tax Identification No.:______________
Signature Guarantee.
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SCHEDULE OF INCREASES OF, AND
EXCHANGES OF INTERESTS IN, THE GLOBAL NOTE(4)
The following increases of this Global Note pursuant to the issuance of
Additional Notes under Section 4.01 of the Indenture, or exchanges of a part of
this Global Note for an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Note Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee or
Date of Exchange this Global Note this Global Note decrease (or increase) Note Custodian
---------------- --------------------- --------------------- ---------------------- -----------------------
______________________
(4) This should be included only if the Note is issued in global form.
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT
SUBSIDIARY GUARANTORS
Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"), dated as
of ___________ _____ 200_, by and among __________________, a ___________
_________ (the "NEW SUBSIDIARY GUARANTOR"), RBX Corporation (or its permitted
successor), a Delaware corporation (the "COMPANY"), the other Subsidiary
Guarantors (as defined in the Indenture referred to herein), and State Street
Bank and Trust Company, as trustee under the Indenture referred to below (the
"TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (as such may be amended or supplemented from time to
time, the "INDENTURE"), dated as of August __, 2001, providing for the initial
issuance of $25,000,000 of 12% Senior Secured Notes due 2006 and the subsequent
issuance of Additional Notes under Section 4.01 of the Indenture (collectively,
the "NOTES");
WHEREAS, Section 4.14 of the Indenture provides that under
certain circumstances newly-acquired or created Subsidiaries of the Company
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "SUBSIDIARY
GUARANTEE"); and
WHEREAS, the New Subsidiary Guarantor is a Subsidiary of the
Company; and
WHEREAS, pursuant to Section 9.01(c) of the Indenture, the
Company, the existing Subsidiary Guarantors and the Trustee are authorized to
execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto mutually covenant and agree for the equal and ratable benefit
of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Subsidiary Guarantees. Subject to the provisions of Article 12 of the
Indenture, the New Subsidiary Guarantor, jointly and severally together with all
other Subsidiary Guarantors (including, without limitation, each Subsidiary
Guarantor that becomes a party to the Indenture after the date hereof by
execution and delivery of a supplemental indenture), hereby unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
(including, without limitation, all Additional Notes) and to the Trustee and its
successors and assigns, that: (a) the principal of, and premium, if any, and
interest on the Notes shall be duly and punctually paid in full when due,
whether at maturity, by acceleration or otherwise, and
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interest on overdue principal, and premium, if any, and (to the extent permitted
by law) interest on any interest, if any, on the Notes and all other obligations
of the Company to the Holders or the Trustee hereunder or under the Notes
(including fees, expenses or other) shall be promptly paid in full or performed,
all in accordance with the terms hereof; and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, the
same shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise (collectively, the "GUARANTEE OBLIGATIONS"). Failing payment when
due of any Guarantee Obligation or failing performance of any other obligation
of the Company to the Holders, for whatever reason, each Subsidiary Guarantor
shall be obligated to pay, or to perform or to cause the performance of, the
same immediately. An Event of Default under the Indenture or the Notes shall
constitute an event of default under the Subsidiary Guarantees, and shall
entitle the Trustee or the Holders of Notes to accelerate the Guarantee
Obligations of each Subsidiary Guarantor in the same manner and to the same
extent as the Obligations of the Company. The New Subsidiary Guarantor hereby
agrees that its Guarantee Obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any thereof, the entry of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
3. Execution and Delivery. Each Subsidiary Guarantor agrees that the
Subsidiary Guarantees set forth in Article 12 of the Indenture and in any
supplemental indentures will remain in full force and effect and apply to all
the Notes notwithstanding any failure to endorse on each Note a notation of the
Subsidiary Guarantees, and notwithstanding any failure of any Subsidiary
Guarantor to execute such notation.
4. Subsidiary Guarantor May Consolidate, Etc. on Certain Terms. The New
Subsidiary Guarantor may not consolidate with or merge with or into another
Person except as permitted under Section 12.03 of the Indenture.
5. Releases. The New Subsidiary Guarantor may be released from its
obligations under its Subsidiary Guarantee in certain circumstances as provided
in the Indenture.
6. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
7. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
9. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of
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the recitals contained herein, all of which recitals are made solely by the
Subsidiary Guarantors and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
RBX CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
STATE STREET BANK AND TRUST
COMPANY
By:_____________________________
Name:___________________________
Title:__________________________
[EXISTING SUBSIDIARY GUARANTORS]
[NEW SUBSIDIARY GUARANTOR]
By:_____________________________
Name:___________________________
Title:__________________________
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EXHIBIT C
SECURITY AGREEMENTS
1. General Security Agreement executed by RBX Industries, Inc. ("RBX
INDUSTRIES") in favor of Congress Financial Corporation ("CONGRESS"), as
collateral agent.
2. Xxxxxxx and Restated General Security Agreement executed by the Company in
favor of Congress, as collateral agent.
3. Amended and Restated Trademark Collateral Assignment and Security Agreement
between RBX Industries and Congress, as collateral agent.
4. Amended and Restated Patent Collateral Assignment and Security Agreement
between RBX Industries and Congress, as collateral agent.
5. Amended and Restated Trademark Collateral Assignment and Security Agreement
between the Company and Congress, as collateral agent.
6. Amended and Restated Pledge and Security Agreement, executed by the Company
in favor of Congress, as collateral agent.
7. Amended and Restated Pledge and Security Agreement, executed by RBX
Industries in favor of Congress, as collateral agent.
8. Deposit Account Control Agreement among the Company, RBX Industries and
Congress, as collateral agent.
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EXHIBIT D
MORTGAGES AND DEEDS OF TRUST
1. Mortgage with Security Agreement and Assignment of Leases from RBX
Industries to Congress, as collateral agent, covering certain real property
located in Colt, Arkansas.
2. Deed of Trust, Assignment of Leases and Rents and Security Agreement, from
RBX Industries for the current benefit of Congress, as collateral agent,
recorded on April 25, 2001, as Instrument No. 0102161 in Botetourt County,
Virginia, as modified by Modification No. 1 and Modification No. 2 thereto.
3. Deed of Secure Debt and Security Agreement, from RBX Industries for the
current benefit of Congress, as collateral agent, recorded in Book 486,
Page 206 in Xxxxxxxx County, Georgia, as modified by Modification No. 1
thereto.
4. Deed of Trust, Assignment of Leases and Rents and Security Agreement, from
RBX Industries for the current benefit of Congress, as collateral agent,
recorded on April 25, 2001, as Instrument No. 010004979 in Bedford County,
Virginia, as modified by Modification No. 1 thereto.
5. Deed of Trust, Assignment of Leases and Rents and Security Agreement, from
RBX Industries for the current benefit of Congress, as collateral agent,
recorded on April 25, 2001, as Instrument No. 010004981 in Bedford County,
Virginia, as modified by Modification No. 1 thereto.
6. Deed of Trust and Security Agreement, from RBX Industries for the current
benefit of Congress, as collateral agent, recorded in Book 2265, Page 1013
in Catawba County, North Carolina, as modified by Modification No. 1
thereto.
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EXHIBIT E
[8/16/01]
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
THIS INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT ("Intercreditor
Agreement") dated as of August , 2001 is by and among Congress Financial
Corporation, a Delaware corporation ("Lender" as hereinafter further defined)
and State Street Bank and Trust Company, a Massachusetts trust company, in its
capacity as trustee pursuant to the Note Indenture (as hereinafter defined)
acting for and on behalf of the holders of the Senior Secured Notes (as
hereinafter defined) issued pursuant thereto (in such capacity, "Note Trustee"
as hereinafter further defined) and Congress Financial Corporation, a Delaware
corporation, in its capacity as collateral agent (in such capacity "Collateral
Agent" as hereinafter further defined) pursuant to this Intercreditor Agreement
and the Security Agreements (as hereinafter defined) acting for and on behalf of
Lender and Note Trustee. The Note Trustee and the Noteholders (as hereinafter
defined) are referred to herein collectively as the "Note Creditors" and
individually as a "Note Creditor", and together with Lender, are sometimes
individually referred to herein as a "Creditor" and collectively as "Creditors."
W I T N E S S E T H:
WHEREAS, concurrently herewith, RBX Corporation, a Delaware corporation
("RBX" as hereinafter further defined) has issued its 12% Senior Secured Notes
due 2006 (collectively, the "Senior Secured Notes" as hereinafter further
defined) pursuant to the Indenture, dated on or about the date hereof, by and
among RBX as issuer, RBX Industries, Inc., as subsidiary guarantor and Note
Trustee, as trustee (the "Note Indenture" as hereinafter further defined) and
the indebtedness evidenced by the Senior Secured Notes is secured by all of the
assets and properties of RBX;
WHEREAS, RBX Industries, Inc., a Delaware corporation, and wholly-owned
subsidiary of RBX ("RBX Industries" as hereinafter further defined, and together
with RBX, collectively "Debtors") has guaranteed the obligations of RBX
evidenced by the Senior Secured Notes as set forth in the Note Indenture, and
which guarantee is secured by all of the assets and properties of RBX
Industries;
WHEREAS, Xxxxxx has entered or is about to enter into financing
arrangements with Debtors, pursuant to which Lender may, upon certain terms and
conditions, make loans and provide other financial accommodations to RBX
Industries secured by all of the assets and properties of RBX Industries, and
the obligations of RBX Industries arising pursuant thereto are guaranteed by
RBX, which guarantee is secured by all of the assets and properties of RBX; and
WHEREAS, Lender and Note Trustee (for itself and on behalf of the
Noteholders), as authorized and directed pursuant to the Note Indenture, desire
to enter into this Intercreditor
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Agreement to (i) appoint Collateral Agent to act on behalf of Creditors
hereunder and under the Security Agreements, (ii) provide for the orderly
sharing among Creditors, in accordance with certain priorities, of proceeds of
the assets and properties of Debtors upon any foreclosure thereon or other
disposition thereof, and (iii) agree upon related matters;
NOW THEREFORE, in consideration of the mutual benefits accruing to
Creditors hereunder and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. DEFINITIONS
As used above and in this Intercreditor Agreement, the following terms
shall have the meanings ascribed to them below:
1.1 "Agreements" shall mean, collectively, the Lender Agreements and the
Noteholder Agreements.
1.2 "Chapter 11 Debtors" shall mean, collectively, each of the following
(together with their respective successors and assigns): (a) Rubatex
Corporation, as debtor and debtor-in-possession, a Delaware corporation, (b)
Xxxxxxxx Manufacturing Company, Inc., as debtor and debtor-in-possession, a
Delaware corporation, (c) OleTex, Inc., as debtor and debtor-in-possession, a
Delaware corporation, (d) Midwest Rubber Custom Mixing Corp., as debtor and
debtor-in-possession, a Delaware corporation, (e) Xxxxxx-Xxxxx Rubber Custom
Mixing Corp., as debtor and debtor-in-possession, a Delaware corporation (f) RBX
Corporation, as debtor and debtor-in-possession, a Delaware corporation, (g) RBX
Group, Inc., as debtor and debtor-in-possession, a Delaware corporation, (h) UPR
Disposition, Inc., as debtor and debtor-in-possession, a Delaware corporation,
(i) Universal Rubber Company, as debtor and debtor-in-possession, a Delaware
corporation, and (j) Waltex Corporation; as debtor and debtor-in-possession, a
Delaware Corporation; each sometimes being referred to herein individually as a
"Chapter 11 Debtor".
1.3 "Collateral" shall mean all of the property and interests in
property, real or personal, tangible or intangible, now owned or hereafter
acquired by any Debtor in or upon which Collateral Agent at any time has (or
purportedly has) a Lien, and including, without limitation, all proceeds and
products of such property and interests in property.
1.4 "Collateral Agent" shall mean Congress Financial Corporation, a
Delaware corporation, in its capacity as collateral agent acting for and on
behalf of Lender and Note Creditors pursuant to the terms hereof and the
Security Agreements, and its successors and assigns (including any replacement
or successor agent or additional agent acting for and on behalf of Xxxxxx and/or
Note Creditors in such capacity).
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1.5 "Creditors" shall mean, collectively, Lender, Note Trustee and the
Noteholders and their respective successors and assigns; sometimes being
referred to herein individually as a "Creditor".
1.6 "Debtors" shall mean, collectively, RBX and RBX Industries; sometimes
being referred to herein individually as a "Debtor".
1.7 "Insolvency Proceeding" shall mean, as to any Debtor, any of the
following: (a) any case or proceeding with respect to such Debtor under the U.S.
Bankruptcy Code, any other federal, state or provincial bankruptcy, insolvency,
reorganization or other law affecting creditors' rights generally or any other
or similar proceedings of any other jurisdiction or otherwise seeking any stay,
reorganization, arrangement, liquidation, dissolution, composition or
readjustment of the obligations and indebtedness of such Debtor or (b) any
proceeding seeking the appointment of any receiver, administrative receiver,
receiver and manager, examiner, judicial custodian, trustee, liquidator,
official manager, administrator or similar official for any Debtor or any
material part of its properties or (c) any proceedings for liquidation,
dissolution or other winding up of the business of such Debtor or (d) the sale
of all or substantially all of the assets or capital stock of such Debtor or (e)
any assignment for the benefit of creditors or any marshaling of assets of such
Debtor.
1.8 "Lender" shall mean Congress Financial Corporation, a Delaware
corporation, and its successors and assigns (and including any other lender or
group of lenders that at any time refinances, replaces or succeeds to all or any
portion of the Lender Debt or is otherwise party to the Lender Agreements).
1.9 "Lender Agreements" shall mean, collectively, the Amended and
Restated Loan Agreement, dated of even date herewith, by and among Lender and
Debtors and all agreements, documents and instruments at any time executed
and/or delivered by any Debtor or any other person to, with or in favor of
Lender in connection therewith or related thereto, as all of the foregoing now
exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated, refinanced, replaced or restructured (in whole or in part and
including any agreements with, to or in favor of any other lender or group of
lenders that at any time refinances, replaces or succeeds to all or any portion
of the Lender Debt).
1.10 "Lender Debt" shall mean any and all obligations, liabilities and
indebtedness of every kind, nature and description owing by a Debtor to Lender
and/or its affiliates or participants, including principal, interest, charges,
fees, premiums, indemnities and expenses, however evidenced, whether as
principal, surety, endorser, guarantor or otherwise, evidenced by or arising
under any of the Lender Agreements, whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal term of the
Lender Agreements or after the commencement of any case with respect to any
Debtor under the U.S. Bankruptcy Code or any state insolvency law or similar
statute (and including, without limitation, any principal, interest, fees,
costs, expenses and other amounts, which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowed or allowable
in whole or in part in any such case or similar proceeding), whether direct or
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indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, and whether arising
directly or howsoever acquired by Lender; provided, that, the principal amount
of the Lender Debt (but not interest, costs, expenses, indemnities or other
charges at any time payable by any Debtor to Lender or charged by Lender to the
loan account of any Debtor maintained by Lender) in excess of $45,000,000 shall
not benefit from the priority in right of payment provided for herein.
1.11 "Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security interest, encumbrance
(including, but not limited to, easements, rights of way and the like), lien
(statutory or other), security agreement or transfer intended as security,
including without limitation, any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease or any financing lease
having substantially the same economic effect as any of the foregoing.
1.12 "Note Creditors" shall mean, collectively, Note Trustee and
Noteholders; sometimes being referred to herein individually as a "Note
Creditor".
1.13 "Noteholder Agreements" shall mean, collectively, the following (as
the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced): (a) the Note Indenture; (b) the Senior
Secured Notes; (c) the agreements listed on Schedule 1 hereto and (d) all
agreements, documents and instruments at any time executed and/or delivered by
any Debtor or any other person to, with or in favor of Note Trustee or any
Noteholder in connection therewith or related thereto.
1.14 "Noteholder Debt" shall mean all obligations, liabilities and
indebtedness of every kind, nature and description owing by a Debtor to Note
Trustee or any Noteholder, including principal, interest, charges, fees,
premiums, indemnities and expenses, however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, evidenced by or arising under any of
the Noteholder Agreements, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of the
Noteholder Agreements or after the commencement of any case with respect to a
Debtor under the U.S. Bankruptcy Code or any state insolvency law or similar
statute (and including, without limitation, any principal, interest, fees,
costs, expenses and other amounts which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowable in whole or
in part, in any such case or similar proceeding), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and whether arising directly
or howsoever acquired by Note Trustee or such Noteholder.
1.15 "Noteholders" shall mean, collectively, any person that at any time
is the owner or holder, directly or indirectly, of record or beneficially, of
any of the Senior Secured Notes; sometimes being referred to herein individually
as a "Noteholder".
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1.16 "Note Indenture" shall mean the Indenture, dated of even date
herewith, by RBX, as issuer, RBX Industries, as subsidiary guarantor and Note
Trustee, providing for the issuance of the Senior Secured Notes, as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
1.17 "Note Trustee" shall mean State Street Bank and Trust Company, a
Massachusetts trust company, in its capacity as trustee pursuant to the Note
Indenture and the other Noteholder Agreements, and its successors and assigns,
including any replacement or successor trustee or any additional trustee.
1.18 "Payment in full" or "payment in full" shall mean the indefeasible
payment and satisfaction in full in immediately available funds of all of the
Lender Debt and the termination of the financing arrangements provided by Lender
to Debtors (but not including for this purpose the refinancing or replacement of
the Lender Debt). If after receipt of any payment of, or proceeds of collateral
applied to the payment of, any of the Lender Debt, Lender is required to
surrender or return such payment or proceeds to any person for any reason, then
the Lender Debt intended to be satisfied by such payment or proceeds shall be
reinstated and continue and this Intercreditor Agreement shall continue in full
force and effect as if such payment or proceeds had not been received by Lender.
1.19 "Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including, without imitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as amended),
limited liability company, limited liability partnership, business trust,
unincorporated association, joint stock company, trust, joint venture, or other
entity or any government or any agency or instrumentality or political
subdivision thereof.
1.20 "Plan of Reorganization" shall mean the Second Amended Joint Plan of
Reorganization of RBX Group, Inc. and its Subsidiaries dated May 11, 2001,
confirmed by order of the U.S. Bankruptcy Court for the Western District of
Virginia, Roanoke Division entered on July 17, 2001 and any amendments,
supplements or modifications thereto.
1.21 "RBX" shall mean RBX Corporation, a Delaware corporation, as
successor by merger to RBX Group, Inc. and the successor upon the conclusion of
the Chapter 11 cases of RBX Corporation and RBX Group, Inc. pursuant to the Plan
of Reorganization, and its successors and assigns, including, without
limitation, a receiver, trustee or debtor-in-possession on behalf of such person
or on behalf of any such successor or assign.
1.22 "RBX Industries" shall mean RBX Industries, Inc., a Delaware
corporation, as successor by merger to the Chapter 11 Debtors (other than RBX
Corporation and RBX Group, Inc.), formerly known as Rubatex Corporation and the
successor upon the conclusion of the Chapter 11 cases of the Chapter 11 Debtors
(other than RBX Corporation and RBX Group, Inc.) pursuant to the Plan of
Reorganization, and its successors and assigns, including, without limitation, a
receiver, trustee or debtor-in-possession on behalf of such person or on behalf
of any such successor or assign.
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1.23 "Security Agreements" shall mean, collectively, the agreements
listed on Schedule 2 hereto and any other agreement at any time executed and/or
delivered by any Debtor to or in favor of Collateral Agent for the benefit of
Creditors granting a Lien upon any Collateral of such Debtor to Collateral Agent
for the benefit of Creditors, in each case as the same now or may hereafter
exist or may be amended, modified, supplemented, extended, renewed, restated or
replaced; each sometimes being referred to herein individually as a "Security
Agreement".
1.24 "Senior Secured Notes" shall mean, collectively, the 12% Senior
Secured Notes due 2006 issued by RBX pursuant to the Note Indenture in the
original aggregate principal amount of $25,000,000, subject to increase upon
payment of interest through the issuance of additional Senior Secured Notes in
accordance with the terms thereof, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
1.25 All terms defined in the Uniform Commercial Code as in effect in the
State of New York, unless otherwise defined herein shall have the meanings set
forth therein. All references to any term in the plural shall include the
singular and all references to any term in the singular shall include the
plural.
2. APPOINTMENT OF COLLATERAL AGENT
2.1 Appointment, Powers and Immunities.
(a) Each Lender and Note Trustee (for itself and on behalf of the
Noteholders) hereby irrevocably designates, appoints and authorizes Congress
Financial Corporation, a Delaware corporation (and any successor Collateral
Agent appointed pursuant to Section 2.6 hereof) to act as Collateral Agent
hereunder and under the Security Agreements with such powers as are specifically
delegated to Collateral Agent by the terms of this Intercreditor Agreement and
the Security Agreements, together with such other powers as are reasonably
incidental thereto.
(b) The Collateral Agent hereby accepts its appointment as the
Collateral Agent hereunder upon the terms and conditions of this Intercreditor
Agreement and the Security Agreements, and hereby agrees to act as
representative and bailee with respect to the Collateral for the benefit of
Creditors upon the terms and conditions of this Intercreditor Agreement and the
Security Agreements.
(c) Collateral Agent (i) shall have no duties or responsibilities
except those expressly set forth in this Intercreditor Agreement and the
Security Agreements, and shall not by reason of this Intercreditor Agreement,
any Security Agreement or otherwise be a trustee or fiduciary for any Creditor;
(ii) shall not be responsible to Creditors for any recitals, statements,
representations or warranties contained in this Intercreditor Agreement (except
for the representations by Collateral Agent set forth in Section 4.2(c) hereof)
or in any of the Security Agreements, or in any certificate or other document
referred to or provided for in, or received by any of them in connection with
this Intercreditor Agreement or any Security Agreement, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Intercreditor Agreement or any Security Agreement or any other
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document referred to or provided for herein or therein or for any failure by any
Debtor or any other Person (other than the Collateral Agent) to perform any of
its obligations hereunder or thereunder; and (iii) except as expressly provided
herein, shall not be responsible to Creditors for any action taken or omitted to
be taken by it hereunder or under any Security Agreement or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct as determined by a final non-appealable order of a court of competent
jurisdiction. Collateral Agent may employ agents and attorneys-in-fact and shall
not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
2.2 Reliance by Collateral Agent. Collateral Agent shall be entitled to
rely upon any certification, notice or other communication (including any
thereof by telephone, telecopy, telex, telegram, cable or email) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, without inquiry or investigation and upon advice and
statements of legal counsel, independent accountants and other experts selected
by Collateral Agent in good faith. As to any matters not expressly provided for
by this Intercreditor Agreement or any other Agreement, Collateral Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by Xxxxxx in
respect of the Collateral until Xxxxxx has received payment in full of the
Lender Debt and thereafter in accordance with instructions given by Note
Trustee. Any action taken or failure to act pursuant to the instructions of
Lender (or Note Trustee, as applicable) shall be binding on all Creditors.
Collateral Agent shall have no obligation to take or not to take any action
pursuant to any instructions of any Note Creditor or any group of Note Creditors
(regardless of the percentage of the other outstanding Noteholder Debt held by
such Noteholders), except for instructions in writing received by Collateral
Agent from Note Trustee. No Noteholder shall give any such instructions to
Collateral Agent, or if any Noteholder shall give any such instructions, such
instructions shall be of no force and effect.
2.3 Non-Reliance on Collateral Agent and Other Lenders. Collateral Agent
has no responsibility to make and has made no representation and has not
furnished documents or information to support any credit analysis by any
Creditor and no Creditor may claim reliance on Collateral Agent. Each Creditor
agrees that it has, independently and without reliance on Collateral Agent or
any other Creditor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of each Debtor and has made its own
decision to enter into its Agreements and that it will, independently and
without reliance upon Collateral Agent or any other Creditor, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under its
Agreements. Collateral Agent shall not be required to keep itself informed as to
the performance or observance by any Debtor of any term or provision of this
Intercreditor Agreement or any Security Agreement or any other document referred
to or provided for herein or therein or to inspect the properties or books of
any Debtor. Collateral Agent shall not have any duty or responsibility to
provide any Creditor with any credit or other information concerning the
affairs, financial condition or business of any Debtor that may come into the
possession of Collateral Agent.
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2.4 Failure to Act. Collateral Agent shall in all cases be fully
justified in failing or refusing to act hereunder and under any Security
Agreement unless it shall receive further assurances to its satisfaction from
Creditors (or at Collateral Agent's option, from Note Trustee on behalf of all
Note Creditors) that Collateral Agent shall have no liability to any Creditor as
a result of any such action.
2.5 Concerning the Collateral and Security Agreements.
(a) Each Lender and Note Trustee (for itself and on behalf of the
Noteholders) authorizes and directs Collateral Agent to enter into the Security
Agreements. Any action taken by Collateral Agent in accordance with the terms of
this Intercreditor Agreement or the Security Agreements relating to the
Collateral, and the exercise by Collateral Agent of its powers set forth therein
or herein, together with such other powers that are reasonably incidental
thereto, shall be binding upon all of Creditors.
(b) Collateral Agent shall have no obligation whatsoever to any
Creditor or any other Person to investigate, confirm or assure that the
Collateral exists or is owned by any Debtor or is cared for, protected or
insured or has been encumbered, or that the Liens granted to Collateral Agent
under the Security Agreements or otherwise have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise at all or in any particular manner, or under
any duty of care, disclosure or fidelity, or to continue exercising, any of the
rights, authorities and powers granted or available to Collateral Agent in this
Intercreditor Agreement or in any of the Security Agreements, it being
understood and agreed that in respect of the Collateral, or any act. omission or
event related thereto, Collateral Agent may act in any manner it may deem
appropriate, in its discretion, exercised in good faith, and that Collateral
Agent shall have no duty or liability whatsoever to any Creditor, except for any
liability to a Creditor as a result of any action by Collateral Agent that is
determined to constitute gross negligence or willful misconduct pursuant to a
final, non-appealable order of a court of competent jurisdiction.
2.6 Resignation.
(a) Collateral Agent may resign at any time by giving notice
thereof to Xxxxxx and Note Trustee. After the payment in full of the Lender
Debt, Note Trustee shall have the right to require Collateral Agent to resign by
giving notice thereof to Xxxxxx and Collateral Agent. In the event of any such
resignation, Collateral Agent shall have the right to appoint a successor agent
reasonably acceptable to Xxxxxx (after consultation with the Lender) or at any
time on or after the payment in full of the Lender Debt, acceptable to the Note
Trustee. Lender (or Note Trustee, as applicable) shall be deemed to have found a
successor reasonably acceptable to it unless Lender (or Note Trustee, as
applicable) indicates to the contrary within five (5) business days after notice
thereof from Collateral Agent to Lender (or Note Trustee, as applicable). If
after payment in full of the Lender Debt, Collateral Agent has resigned, any
payment of, or proceeds applied to the payment of, the Lender Debt are required
to be surrendered or returned, so that any Lender Debt is reinstated (as set
forth in the definition of payment in full), Congress as the former Collateral
Agent may, at its option, automatically
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upon notice to Note Trustee, be reappointed as Collateral Agent and the then
Collateral Agent shall be deemed to have resigned.
(b) Upon the acceptance of any appointment as agent hereunder by a
successor agent and the delivery of any Collateral that is the in the possession
of the retiring Collateral Agent, (i) the successor agent shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, (ii) the retiring Collateral Agent shall have no further
duties and obligations hereunder and (iii) the retiring Collateral Agent shall,
at the expense of Debtors, upon the written request of the successor Collateral
Agent and without representation, warranty or recourse, execute and deliver such
documents, instruments and agreements as are reasonably necessary to effect an
assignment of the rights and obligations of the retiring Collateral Agent to the
successor Collateral Agent. After any retiring Collateral Agent's resignation or
removal hereunder as Collateral Agent, the provisions of this Section 2 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Collateral Agent.
3. SECURITY INTERESTS; PRIORITIES; REMEDIES
3.1 Acknowledgment of Liens; Priorities.
(a) Each Creditor and Collateral Agent hereby acknowledges that
Collateral Agent has been granted a Lien upon the Collateral for the benefit of
the Creditors. Notwithstanding any conflicting terms or conditions which may be
contained in any of the Agreements, the Liens upon the Collateral of Collateral
Agent for the benefit of Lender have and shall have priority over the Liens upon
the Collateral of Collateral Agent for the benefit of Note Creditors and such
Liens of Collateral Agent for the benefit of Note Creditors on the Collateral
are and shall be, in all respects, subject and subordinate to the Liens of
Collateral Agent for the benefit of Lender therein to the full extent of the
Lender Debt.
(b) The proceeds of any sale, disposition or other realization
upon all or any part of the Collateral shall be applied in the following order
of priorities:
(i) first, to the payment in full in immediately available
funds of the expenses of the collection and enforcement of the Lender Debt and
such sale, disposition or other realization of the Collateral, including all
expenses, liabilities and advances incurred or made by Collateral Agent or
Lender in connection therewith, or any amounts paid to or on behalf of
Collateral Agent by Lender in connection therewith;
(ii) second, to the payment in full of all of the Lender
Debt in whatever manner and order Lender chooses in accordance with the
provisions of the Lender Agreements and applicable law (and including amounts to
hold as cash collateral for any Lender Debt which is contingent in such amounts
and on such terms as Lender may require pursuant thereto);
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(iii) third, to the Note Trustee for payment and
satisfaction in full in immediately available funds of all of the Noteholder
Debt in whatever manner and order Note Trustee chooses in accordance with the
provisions of the Noteholder Agreements and applicable law;
(iv) fourth, to the payment of any other Lender Debt, if
any, in whatever manner and order Lender chooses in accordance with the
provisions of the Lender Agreements and applicable law; and
(v) fifth, to the Debtors or such other person as may be
lawfully entitled thereto.
(c) Notwithstanding any instruction, notice or claim to the
contrary at any time received by Collateral Agent from any Note Creditor or
otherwise, Collateral Agent shall have no obligation, liability or
responsibility with respect to the distribution, delivery or remittance of any
proceeds of the Collateral to any Noteholder. Any proceeds of Collateral
received by Collateral Agent which are to be applied to the Noteholder Debt in
accordance with the terms hereof are only required to be remitted by Collateral
Agent to Note Trustee.
3.2 Priorities Unaffected by Actions or Inactions. The lien priorities
provided in Section 3.1 hereof shall not be altered or otherwise affected by any
amendment, modification, supplement, extension, renewal, restatement or
refinancing of either the Lender Debt or the Noteholder Debt, nor by any action
or inaction which Collateral Agent or any Creditor may take or fail to take in
respect of the Collateral. The foregoing provisions of this Agreement are
intended solely to govern the respective lien priorities as between the
Creditors and shall not impose on Collateral Agent any obligations in respect of
the disposition of proceeds of foreclosure or otherwise in respect of any
Collateral which would conflict with prior perfected claims therein in favor of
any other person or any order or decree of any court or other governmental
authority or any applicable law.
3.3 No Contest of Lien. Lender and Note Trustee for itself and on behalf
of each Noteholder agrees that it will not contest the validity, perfection,
priority or enforceability of the Liens upon the Collateral of Collateral Agent
or any rights of Collateral Agent with respect to the Collateral, or the
respective priorities assigned to the Liens securing the Noteholder Debt and the
Lender Debt herein, or the validity or reasonableness of any act or omission by
Collateral Agent in respect of the Collateral, including, without limitation,
the timing, method, or manner of selling or otherwise disposing of or realizing
upon any of the Collateral, the terms (including the price and percentage of
consideration received in cash) of any such sale or other disposition or
realization, or any failure to sell, dispose of or realize upon any of the
Collateral. As between Lender and Note Creditors, the terms of this
Intercreditor Agreement shall govern even if part or all of the Lender Debt or
the Noteholder Debt or the Liens securing payment and performance thereof are
not perfected or are avoided, disallowed, set aside or otherwise invalidated in
any judicial proceeding or otherwise.
3.4 Right to Enforce Agreement.
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(a) Collateral Agent shall have the exclusive right to manage,
perform and enforce the terms of the Security Agreements with respect to the
Collateral, to exercise and enforce all privileges and rights thereunder in
respect of the Collateral according to its discretion exercised in good faith
and the exercise of its exclusive business judgment (notwithstanding any default
or event of default under any of the Lender Agreements, Noteholder Agreements or
the Security Agreements), including, without limitation, the exclusive right to
administer, take or retake control or possession of any Collateral, to hold,
prepare for sale, process, sell, lease, dispose of, or liquidate any Collateral,
to foreclose or forbear from foreclosure in respect of any Collateral, seeking
or not seeking relief from any stay against foreclosure or other remedies in any
Insolvency Proceeding in respect of any Collateral and the acceptance of any
Collateral in full or partial satisfaction of any indebtedness. Notwithstanding
anything to the contrary contained in any of the Agreements, only Collateral
Agent shall have the right to restrict or permit, or approve or disapprove, the
sale, transfer or other disposition of Collateral. No consent or approval by any
Note Creditor to any sale, transfer or other disposition of any Collateral by
Collateral Agent or by any Debtor with the approval of Collateral Agent shall be
required, and Collateral Agent may, without the consent of Note Creditors,
release its Lien on any Collateral so sold, transferred or disposed of, and
notwithstanding anything to the contrary contained in any of the Agreements,
Note Creditors shall be deemed to have consented thereto (and Note Trustee shall
be deemed required to release its Lien for purposes of Section 10.05(c) of the
Note Indenture, which provision may not be amended or supplemented without the
prior consent of Collateral Agent), except that, in connection with any sale of
Collateral by any Debtor with the approval of Collateral Agent, and the release
of the Lien of Collateral Agent, to the extent that the amount of the proceeds
that must be received from such sale by Debtors as a condition of the consent of
Lender to such sale are not set out in the Lender Agreements (as in effect on
the date hereof), and to the extent that Section 314 of the Trust Indenture Act
of 1939 may be applicable to such sale or release, the consent of Note Creditors
is subject only to the receipt by Note Trustee of such certificates and opinions
as may be required under Section 314(d) of the Trust Indenture Act of 1939, if
any. Any costs and expenses or other amounts paid or to be paid by Collateral
Agent may be paid by Xxxxxx and shall constitute part of the Lender Debt secured
by the Collateral. Nothing contained in this Section 3.4(a) shall be construed
to relieve Collateral Agent from any liability to Creditors for any losses
suffered by Creditors as a result of an action by Collateral Agent in conducting
a sale, transfer or other disposition of any Collateral by Collateral Agent
which is determined to constitute gross negligence or wilful misconduct pursuant
to a final, non-appealable order of a court of competent jurisdiction. Until
Lender has received payment in full of the Lender Debt, no Note Creditor shall
have any right to direct Lender or Collateral Agent to exercise any right,
remedy or power with respect to the Collateral and Note Trustee on behalf of
each Note Creditor consents to the exercise by Lender or Collateral Agent of any
such right, remedy or power as provided herein. No Note Creditor shall institute
any suit or assert in any suit, Insolvency Proceeding or other proceeding any
claim against Note Trustee, Lender or Collateral Agent seeking damages from or
other relief by way of specific performance, instructions or otherwise, with
respect to, and Note Trustee, Lender and Collateral Agent shall not be liable
for, any action taken or omitted to be taken by Note Trustee, Lender or
Collateral Agent with respect to the Collateral.
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(b) Except as expressly permitted by Section 3.4(c) hereof,
notwithstanding any rights or remedies available to a Creditor under any of the
Agreements, applicable law or otherwise, without the consent of the Collateral
Agent, no Creditor shall directly or indirectly assert or exercise any right or
remedy as against any of the Collateral, including, without limitation, seeking
to foreclose or realize upon (judicially or non-judicially) any Collateral or
asserting any claims or interests therein (including, without limitation, by
setoff or notification of account debtors).
(c) Promptly upon the request of Collateral Agent, Lender or Note
Trustee will, at the expense of Debtors, join in enforcement, collection,
execution, levy or foreclosure proceedings with respect to the Collateral and
otherwise cooperate fully in the maintenance of such proceedings by Collateral
Agent, including, without limitation, by executing and delivering all such
directions, consents, pleadings, releases and other documents and instruments as
Collateral Agent may reasonably request in connection therewith, it being
understood that the conduct of such proceedings shall at all times be under the
exclusive control of Collateral Agent.
(d) Uniform Commercial Code financing statements (and including
any amendments, assignments, correction statements or termination statements
with respect thereto), mortgages, deeds of trust, deeds to secure debt and other
instruments to perfect the Liens of Collateral Agent in certain of the
Collateral shall be filed by Collateral Agent naming Collateral Agent as the
secured party. No Creditor shall file any Uniform Commercial Code financing
statements (and including any amendments, assignments, correction statements or
termination statements with respect thereto), mortgages, deeds of trust, deeds
to secure debt and other instruments with respect to the Collateral, unless
Collateral Agent shall fail to do so within ten (10) business days of receiving
notice that any of the foregoing have not been properly filed or have lapsed,
except if Collateral Agent is not permitted to file such financing statements,
mortgages, deeds of trust, deeds to secure debt or other instruments as a result
of any applicable statute or regulation or order of any court or other
governmental authority, and then in such case, only with the prior written
consent of Collateral Agent. No Creditor shall exercise or assert any right to
exercise any voting rights in respect of any act or omission by Collateral Agent
with respect to the Collateral (or the disposition of the proceeds thereof), or
to direct or assert any right to direct Collateral Agent. Collateral Agent may
amend, modify, supplement or waive any provision of any Security Agreement only
with the approval of Lender until the payment in full of the Lender Debt and
thereafter only with the approval of Note Trustee, except that, Collateral Agent
may not waive any default or event of default arising under the Note Indenture
or the Lender Agreements.
3.5 Rights of Collateral Agent in Insolvency Proceedings. In the event of
any Insolvency Proceeding with respect to any Debtor,
(a) in addition to any other rights granted hereunder, Collateral
Agent is hereby irrevocably authorized and empowered (in its own name or in the
name of any Creditor or otherwise), but shall have no obligation, to take such
action on behalf of the Creditors as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of the parties
hereunder or under any Security Agreement; and
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(b) Lender and Note Trustee (for itself and on behalf of the
Noteholders) shall duly and promptly take such action as Collateral Agent may
reasonably request to permit Collateral Agent (i) to collect any Collateral (or
any distribution in respect thereof) for the account of any Creditor and file
appropriate claims or proofs of claim in respect of any Collateral and (ii) to
execute and deliver such powers of attorney, assignments or other instruments as
Collateral Agent may reasonably require to enforce any and all claims with
respect to any Collateral on behalf of Creditors and to collect and receive on
behalf of the Creditors any and all payments or distributions that may be
payable or deliverable upon or with respect to the Collateral and distribute
same in accordance with the terms hereof.
3.6 Specific Performance. Collateral Agent is hereby authorized to demand
specific performance of this Intercreditor Agreement at any time when any
Creditor shall have failed to comply with any of the provisions of this
Intercreditor Agreement applicable to it. Each Creditor hereby irrevocably
waives any defense which might be asserted as a bar to such remedy of specific
performance.
3.7 Sale and Release of Collateral. Notwithstanding anything to the
contrary contained in any of the Agreements, until payment in full of the Lender
Debt, only Lender shall have the right to restrict or permit, or approve or
disapprove, the sale, transfer or other disposition of Collateral, subject in
certain circumstances to the receipt by Note Trustee of certain certificates and
opinions as set forth in Section 3.4(a) hereof.
3.8 Permitted Payments.
(a) Debtors shall not, without the prior written consent of
Collateral Agent in each instance, directly or indirectly, make, and Note
Trustee shall not accept, any payments in respect of the Noteholder Debt, except
for (i) regularly scheduled payments of interest in the form of additional
indebtedness with substantially the same terms as the Senior Secured Notes (as
in effect on the date hereof) in accordance with the terms of the Noteholder
Agreements as in effect on the date hereof until after the date that is the
third anniversary of the date of this Intercreditor Agreement and thereafter in
cash as provided in the Senior Secured Notes as in effect on the date hereof,
(ii) the principal on or after the date which is the fifth anniversary of the
date hereof and (iii) regularly scheduled payments of interest when due in
accordance with the terms of the Senior Secured Notes (as in effect on the date
hereof) in cash or other immediately available funds after the first anniversary
of the date hereof, provided, that, as to any such payment under this clause
(a)(iii), Collateral Agent shall have notified Note Trustee in writing that each
of the following conditions is satisfied:
(A) no event of default, or act, condition or event which
with notice or passage of time would constitute an event of default, under the
Lender Agreements shall exist or have occurred (provided, that, any such notice
by Lender to Note Trustee shall not be deemed a waiver of any such default or
event of default which may exist or a waiver or release of any rights or
remedies of Lender or Collateral Agent pursuant to any such default or event of
default or otherwise);
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(B) as of the date of any such payment, the Excess
Availability (as such term is defined in the Lender Agreements) shall have been
not less than $5,000,000 for each of the immediately preceding thirty (30)
consecutive days; and
(C) as of the date of any such payment and after giving
effect thereto, the Excess Availability shall be not less than $5,000,000.
(b) Unless Note Trustee shall have received written notice from
Lender to the contrary, should Note Trustee receive any payment in respect of
the Noteholder Debt in contravention of Section 3.8(a) hereof, Note Trustee
shall receive and hold the same in trust, as trustee, for the benefit of Lender,
segregated from other funds and property of Note Trustee and shall forthwith
deliver the same to Lender (together with any endorsement or assignment of Note
Trustee where necessary or desirable), for application to any of the Lender
Debt. In the event of the failure of Note Trustee to make any such endorsement
or assignment to Lender, Lender or any of its officers or employees, are hereby
irrevocably authorized on behalf of such Note Trustee to make the same.
(c) Nothing contained in this Section 3.8 shall be construed to
limit the right of Debtors to make, and Note Trustee to accept, payments
required to be made by Debtors under the Note Indenture (as in effect on the
date hereof) to Note Trustee solely for the account of Note Trustee and for its
own benefit which payments are to be retained by Note Trustee (and are not made
to Note Trustee for distribution to any Noteholder).
3.9 Delivery of Collateral. In the event that any Note Creditor shall
obtain possession, custody or control of any of the Collateral (which shall not
be deemed to include proceeds of loans to a Debtor deposited with the Note
Trustee to pay principal and interest in respect of the Senior Secured Notes to
the extent such payment is permitted hereunder or proceeds of Collateral
distributed in accordance with Section 3.1(b) hereof), prior to the payment in
full of the Lender Debt, such Note Creditor shall receive and hold the same in
trust, as trustee, for the benefit of Collateral Agent, and shall immediately
transfer and deliver such Collateral to Collateral Agent (together with any
endorsement or assignment of such Note Creditor where necessary or desirable).
In the event of the failure of any Note Creditor to make any such endorsement or
assignment to Collateral Agent, Collateral Agent, or any of its officers or
employees, are hereby irrevocably authorized on behalf of such Note Creditor to
make the same. In the event that at any time all or part of any payment with
respect to the Lender Debt previously made is rescinded or required to be
returned for any reason, each Note Creditor shall promptly deliver to Collateral
Agent any Collateral then held by it and the provisions of this Intercreditor
Agreement shall be reinstated as if such payment had not been made.
3.10 Bailee for Perfection. Collateral Agent and each Creditor hereby
appoints each other Creditor as agent for the purpose of perfecting the Liens
upon the Collateral which, in accordance with the Uniform Commercial Code as
from time to time in effect, can be perfected only by possession or where such
possession or control results in the Liens of Collateral Agent having priority
over any other Liens and each hereby agrees to serve, as agent and bailee for
the other Creditors for such purpose
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and any Creditor that at any time has any Collateral in its possession
acknowledges that it holds and will hold possession of such Collateral for the
benefit of Lender and Note Trustee, subject to the obligation to deliver such
Collateral to Collateral Agent as provided herein.
3.11 Notices of Default and Acceleration. Each Creditor shall give to the
other Creditor (or in the case of Lender, shall give only to Note Trustee for
itself and the Noteholders) concurrently with the giving thereof to any Debtor,
a copy of any written notice by such Creditor of either (a) a default or an
event of default under its Agreements with such Debtor or (b) written notice of
demand for payment from such Debtor; provided, that, the failure of any party to
give any such notice to the other shall not affect the relative priorities of
Creditors' respective Liens as provided herein or the validity or effectiveness
of any such notice as against any Debtor. Each Debtor hereby authorizes and
consents to each Creditor sending any such notices to the other Creditors or
providing any other information with respect to any Debtor to the other
Creditors.
3.12 Opportunity to Cure. Lender shall have the right, but not any
obligation, to cure for the account of Debtors any default by any Debtor under
the Noteholder Agreements at any time within fifteen (15) days after the date of
the receipt by Lender of written notice from Note Trustee of an event of default
under the Noteholder Agreements as a result a the failure of any Debtor to make
any payment when due thereunder or at any time within (30) days after the date
of written notice from Note Trustee of an event of default under the Noteholder
Agreements for any other reason or the applicable cure period provided for in
the Noteholder Agreements if longer (and if a payment default on an
unaccelerated basis). In no event shall Lender by virtue of the payment of
amounts, or performance of any obligation required to be paid or performed by
any Debtor, be deemed to have assumed any obligation of any Debtor to any Note
Creditor or any other person.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES
4.1 Additional Covenants. Note Trustee and each Debtor (in each case
severally only for itself and not jointly) agree in favor of Creditors that:
(a) Note Trustee and Debtors shall, at any time or times upon the
request of Lender, promptly furnish to Collateral Agent a statement of the
outstanding Noteholder Debt based on the register with respect thereto
maintained by Debtors and Note Trustee;
(b) Note Trustee, for itself and on behalf of the Noteholders,
shall execute and deliver to Collateral Agent such additional agreements,
documents and instruments and take such further actions as may be reasonably
necessary or desirable in the opinion of Collateral Agent to effectuate the
provisions and purposes of this Intercreditor Agreement.
4.2 Additional Representations and Warranties.
(a) Note Trustee represents and warrants to Lender and Collateral
Agent that:
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(i) to the best of the knowledge of the Note Trustee, as of
the date hereof, no default or event of default, or act, condition or event
which with notice or passage of time or both would constitute an event of
default under any of the Noteholder Agreements exists or has occurred;
(ii) the execution, delivery and performance of this
Intercreditor Agreement by the Note Trustee is within its powers in its capacity
as trustee for each Noteholder and has been authorized by each Noteholder as
provided in, and in accordance with the requirements of, the Note Indenture, and
does not contravene any law, any provision of any of the Noteholder Agreements
or any other agreement to which Note Trustee is a party or by which it is bound;
(iii) the Note Trustee has been duly appointed and
constituted as trustee to act for and on behalf of each Noteholder and has been
irrevocably authorized to execute and deliver this Intercreditor Agreement for
itself and on behalf of each Noteholder and to perform all of its obligations
hereunder, and to take such actions on behalf of each Noteholder as may be
required of it under the terms hereof, without any further consent or approval
of any Noteholder and is in such position as of the date hereof;
(iv) the Note Trustee has not been granted and does not
have any Liens upon the assets and properties of any Debtor, except to the
extent that the security interests of Collateral Agent under the Security
Documents are for the benefit of Note Trustee;
(v) this Intercreditor Agreement constitutes the legal,
valid and binding agreement of Note Trustee and is enforceable in accordance
with its terms and shall be binding on Note Trustee; and
(vi) the Note Indenture provides that this Intercreditor
Agreement is the valid and binding agreement of each Noteholder acting by and
through the Note Trustee and enforceable in accordance with its terms with
respect to such Noteholder.
(b) Lender represents and warrants to Note Creditors that:
(i) as of the date hereof, no default or event of default,
or act, condition or event which with notice or passage of time or both would
constitute an event of default under any of the Lender Agreements exists or has
occurred;
(ii) the execution, delivery and performance of this
Intercreditor Agreement by Lender is within its powers and has been duly
authorized by it and does not contravene any law, any provision of any of the
Lender Agreements or any other agreement to which Lender is a party or by which
it is bound; and
(iii) this Intercreditor Agreement constitutes the legal,
valid and binding agreement of Lender and is enforceable in accordance with its
terms and shall be binding on Lender.
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(c) Collateral Agent represents and warrants to Creditors that:
(i) the execution, delivery and performance of this
Intercreditor Agreement by Collateral Agent is within its powers and has been
duly authorized by it and does not contravene any law, any provision of any
agreement to which Collateral Agent is a party or by which it is bound; and
(ii) this Intercreditor Agreement constitutes the legal,
valid and binding agreement of Collateral Agent and is enforceable in accordance
with its terms and shall be binding on Collateral Agent.
4.3 Waivers.
(a) Notice of acceptance hereof, the making of loans, advances and
extensions of credit or other financial accommodations to, and the incurring of
any expenses by or in respect of, any Debtor by Xxxxxx, and presentment, demand,
protest, notice of protest, notice of nonpayment or default and all other
notices to which or any Note Creditor or Debtor are or may be entitled are
hereby waived (except as expressly provided for herein or as to Debtor, in the
Lender Agreements). The foregoing shall not be construed to waive the rights of
any Noteholder to any notice from Note Trustee required under the Note
Indenture.
(b) Each Creditor hereby waives, to the fullest extent permitted
by law, (i) any right (A) under Section 9-608(a)(1) of the Uniform Commercial
Code to application of the proceeds of disposition of any Collateral other than
as contemplated by this Intercreditor Agreement, (B) to redeem any of the
Collateral following Collateral Agent's foreclosure thereon and (C) to
promptness, diligence, notice of acceptance and any other notice with respect to
any of the obligations under the Agreements and (ii) any requirement that
Collateral Agent protect, secure, perfect or insure any security interest or
lien under any Security Agreement or otherwise or the Collateral or any other
property subject thereto or exhaust any right or take any action against any
Debtor or any other person or any Collateral, except as expressly provided in
this Intercreditor Agreement.
(c) Until Lender has received payment in full of the Lender Debt,
Note Creditor also waives notice of, and hereby consents to, (i) any amendment,
modification, supplement, renewal, restatement or extensions of time of payment
of or increase or decrease in the amount of any of the Lender Debt or to the
Lender Agreements or any Collateral, provided that the Lender Agreements are not
amended to increase the maximum commitment thereunder to more than $45,000,000,
(ii) the good faith taking, exchange, surrender and releasing of Collateral or
guarantees now or at any time held by or available to Collateral Agent or Lender
for the Lender Debt or any other person at any time liable for or in respect of
the Lender Debt as provided herein, (iii) the exercise of, or refraining from
the exercise of any rights against any Debtor or any other obligor or any
Collateral, (iv) the settlement, compromise or release of, or the waiver of any
default with respect to, any of the Lender Debt, and/or (d) Lender`s election,
in any proceeding instituted under the U.S. Bankruptcy Code, of the application
of Section 1111(b)(2) of the U.S. Bankruptcy Code. Any of the foregoing shall
not, in any manner,
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affect the terms hereof or impair the obligations of any Note Creditor
hereunder. No Note Creditor shall, directly or indirectly, by judicial
proceedings or otherwise, challenge the enforceability of any provision of this
Intercreditor Agreement. All of the Lender Debt shall be deemed to have been
made or incurred in reliance upon this Intercreditor Agreement.
4.4 Subrogation; Marshalling. Note Creditors shall not be subrogated to,
or be entitled to any assignment of any Lender Debt or Noteholder Debt or of any
Collateral or guarantees or evidence of any thereof until the payment in full of
the Lender Debt. Each Note Creditor hereby waives any and all rights to have any
Collateral or any part thereof granted to Creditor marshalled upon any
foreclosure or other disposition of such collateral by Creditor or a Debtor.
4.5 No Offset. In the event any Note Creditor at any time incurs any
obligation to pay money to a Debtor, such Note Creditor hereby irrevocably
agrees that it shall pay such obligation in cash or cash equivalents in
accordance with the terms of the contract governing such obligation and shall
not deduct from or setoff against any amounts owed by such Note Creditor to such
Debtor in connection with any such transaction any amounts such Note Creditor
claims are due to it with respect to the Noteholder Debt.
5. MISCELLANEOUS
5.1 Amendments. Any waiver, permit, consent or approval by any Creditor
of or under any provision, condition or covenant to this Intercreditor Agreement
must be in writing and shall be effective only to the extent it is set forth in
writing and as to the specific facts or circumstances covered thereby. Any
amendment of this Intercreditor Agreement must be in writing and signed by each
of the parties to be bound thereby (except as to Note Creditors, under the terms
of the Note Indenture each Noteholder has agreed to be bound thereby
notwithstanding that such amendment may be signed only by the Note Trustee, and
Xxxxxx is hereby authorized to rely on such execution by Note Trustee without
inquiry as to its right or authority to so bind any Noteholder).
5.2 Successors and Assigns.
(a) This Intercreditor Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of each Creditor and its respective successors, participants and
assigns. Notwithstanding that each Noteholder may not execute and deliver this
Intercreditor Agreement, under the terms of the Indenture by acceptance of any
Senior Secured Note, a Noteholder has agreed to be bound hereby as if such
Noteholder had executed and delivered this Intercreditor Agreement and the terms
set forth herein are incorporated into and shall be deemed a part of each of the
Senior Secured Notes. Lender is relying upon the binding nature of this
Intercreditor Agreement upon each Note Creditor.
(b) Lender reserves the right to grant participations in, or
otherwise sell, assign, transfer or negotiate all or any part of, or any
interest in, the Lender Debt and the Collateral securing same;
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provided, that, Note Trustee shall not be obligated to give any notices to or
otherwise in any manner deal directly with any participant in the Lender Debt
and no participant shall be entitled to any rights or benefits under this
Intercreditor Agreement except through Lender. In connection with any
participation or other transfer or assignment, Lender (i) may disclose to such
assignee, participant or other transferee or assignee all documents and
information which Lender now or hereafter may have relating to the Lender Debt
or the Collateral and (ii) shall disclose to such participant or other
transferee or assignee the existence and terms and conditions of this
Intercreditor Agreement.
(c) In connection with any successor financing or replacement in
respect of the Lender Debt, Note Trustee agrees (and has been irrevocably
authorized and directed by each Noteholder pursuant to the terms of the Note
Indenture) to execute and deliver an agreement containing terms substantially
identical to those contained herein in favor of any such successor or
replacement lenders.
5.3 Insolvency.
(a) This Intercreditor Agreement shall be applicable both before
and after the filing of any petition by or against a Debtor under the U.S.
Bankruptcy Code and all converted or succeeding cases in respect thereof, and
all references herein to a Debtor shall be deemed to apply to a trustee for such
Debtor and such Debtor as debtor-in-possession. The relative rights of Xxxxxx
and Note Creditors to repayment of the Lender Debt and the Noteholder Debt,
respectively, and in or to any distributions from or in respect of any Debtor or
any Collateral or proceeds of Collateral, shall continue after the filing
thereof on the same basis as prior to the date of the petition, subject to any
court order approving the financing of, or use of cash collateral by, such
Debtor as debtor-in-possession.
(b) Each Creditor shall be entitled to vote its claim in any
Insolvency Proceeding so long as no Creditor (i) challenges any Liens of
Collateral Agent or (ii) challenges or disputes the validity of this
Intercreditor Agreement.
5.4 Bankruptcy Financing. If a Debtor shall become subject to a
proceeding under the U.S. Bankruptcy Code and if Lender desires to permit the
use of cash collateral or to provide financing to such Debtor under either
Section 363 or Section 364 of the U.S. Bankruptcy Code, each Note Creditor
agrees as follows: (a) adequate notice to Note Creditors shall have been
provided for such financing or use of cash collateral if Note Trustee receives
notice five (5) business days prior to the entry of the order approving such
financing or use of cash collateral and (b) no objection will be raised by Note
Creditors to any such financing or use of cash collateral on the ground of a
failure to provide "adequate protection" for the junior Liens of Note Trustee on
the Collateral or any other grounds, provided (i) Collateral Agent retains a
Lien on the post-petition Collateral for the benefit of Note Trustee with the
same priority as existed prior to the commencement of the proceeding under the
U.S. Bankruptcy Code to the extent Collateral Agent may be entitled to such a
Lien on behalf of Note Trustee and Note Trustee is permitted to receive such
payments of interest during such proceeding as adequate protection as it may
have been entitled to hereunder and under the U.S. Bankruptcy Code, if
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any and (ii) the principal amount of the maximum commitments to provide such
post-petition financing, when aggregated with the principal amount of the loans
outstanding under the Lender Agreements immediately prior to the commencement of
such proceeding, would not exceed $45,000,000 and the percentage of the margin
of the interest rate with respect to the Lender Debt after the commencement of
such proceedings shall not be more than one (1%) percentage point per annum
greater than the percentage of the margin as in effect immediately prior to the
commencement of such proceeding. For purposes of this Section, notice of a
proposed financing or use of cash collateral shall be deemed given when given,
in the manner prescribed by Section 5.5 hereof, to Note Trustee.
5.5 Notices. All notices, requests and demands to or upon the respective
parties hereto shall be in writing and shall be deemed duly given, made or
received: if delivered in person, immediately upon delivery; if by telex,
telegram or facsimile transmission, immediately upon sending and upon
confirmation of receipt; if by nationally recognized overnight courier service
with instructions to deliver the next business day, one (1) business day after
sending; and if mailed by certified mail, return receipt requested, five (5)
days after mailing to the parties at their addresses set forth below (or to such
other addresses as the parties may designate in accordance with the provisions
of this Section):
To Lender and
Collateral Agent: Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxx
Telecopy No.: 000-000-0000
To Note Trustee: State Street Bank and Trust Company
Corporate Trust
Xxxxxxx Square
000 Xxxxxx Xxxxxx, 00(xx) Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxxxx
with a copy to: Xxxxxxx Xxxxxxxxxxx, Esq.
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Collateral Agent, Lender or Note Trustee may change the address(es) to which all
notices, requests and other communications are to be sent by giving written
notice of such address change to the other Creditor in conformity with this
Section 5.5, but such change shall not be effective until notice of such change
has been received by Collateral Agent, Note Trustee or Lender, as the case may
be.
5.6 Counterparts. This Intercreditor Agreement may be executed in any
number of counterparts, each of which shall be an original with the same force
and effect as if the signatures
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thereto and hereto were upon the same instrument. Delivery of an executed
signature page to this Intercreditor Agreement shall be as effective as delivery
of a manually executed counterpart hereof.
5.7 Governing Law. The validity, construction and effect of this
Intercreditor Agreement shall be governed by the internal laws of the State of
New York (without giving effect to principles of conflicts of law).
5.8 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE
SUPREME COURT OF THE STATE OF NEW YORK IN NEW YORK COUNTY AND THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS INTERCREDITOR AGREEMENT.
5.9 Complete Agreement. This written Intercreditor Agreement is intended
by the parties as a final expression of their agreement and is intended as a
complete statement of the terms and conditions of their agreement.
5.10 No Third Parties Benefitted. Except as expressly provided in Section
5.2, this Intercreditor Agreement is solely for the benefit of the Creditors and
their respective successors, participants and assigns, and no other person shall
have any right, benefit, priority or interest under, or because of the existence
of, this Intercreditor Agreement.
5.11 Disclosures; Non-Reliance. Each Creditor has the means to, and shall
in the future remain, fully informed as to the financial condition and other
affairs of each Debtor and no Creditor shall have any obligation or duty to
disclose any such information to any other Creditor. Except as expressly set
forth in this Intercreditor Agreement, the parties hereto have not otherwise
made to each other nor do they hereby make to each other any warranties, express
or implied, nor do they assume any liability to each other with respect to: (a)
the enforceability, validity, value or collectability of any of the Noteholder
Debt or Lender Debt or any guarantee or security which may have been granted to
any of them in connection therewith, (b) a Debtor's title to or right to
transfer any of the Collateral, or (c) any other matter except as expressly set
forth in this Intercreditor Agreement.
5.12 Term. This Intercreditor Agreement is a continuing agreement and
shall remain in full force and effect until payment in full of all Lender Debt.
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement
to be duly executed as of the day and year first above written.
CONGRESS FINANCIAL CORPORATION
By:
-------------------------------------
Title:
----------------------------------
STATE STREET BANK AND TRUST
COMPANY, as Note Trustee
By:
-------------------------------------
Title:
----------------------------------
Each of the undersigned hereby acknowledges and agrees to the foregoing
terms and provisions. By its signature below, each of the undersigned agrees
that it will, together with its successors and assigns, be bound by the
provisions hereof.
Each of the undersigned agrees that any Creditor holding Collateral does
so as bailee (under the UCC) for the other and is hereby authorized to and may
turn over to such other Creditor upon request therefor any such Collateral,
after all obligations and indebtedness of the undersigned to the bailee Creditor
have been fully paid and performed.
Each of the undersigned acknowledges and agrees that: (i) although it may
sign this Intercreditor Agreement it is not a party hereto and does not and will
not receive any right, benefit, priority or interest under or because of the
existence of the foregoing Intercreditor Agreement, (ii) in the event of a
breach by the undersigned or any Note Creditor of any of the terms and
provisions contained in the foregoing Intercreditor Agreement, such a breach
shall constitute an "Event of Default" as defined in and under the Lender
Agreements and (iii) it will execute and deliver such additional documents and
take such additional action as may be necessary or desirable in the opinion of
any Creditor to effectuate the provisions and purposes of the foregoing
Intercreditor Agreement.
RBX CORPORATION
By:
-------------------------------------
Title:
----------------------------------
RBX INDUSTRIES, INC.
By:
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Title:
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