Exhibit 4.1
Execution Copy
XXXX INDUSTRIES, INC.
ISSUER
ANCHOR HOLDINGS, INC.
GUARANTOR
AND
STATE STREET BANK AND TRUST COMPANY
(SUCCESSOR TO FLEET NATIONAL BANK)
TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 8, 2000
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TO
THE INDENTURE DATED AS OF APRIL 2, 1997
BETWEEN XXXX INDUSTRIES, INC. (F/K/A ANCHOR ADVANCED PRODUCTS, INC.),
ANCHOR HOLDINGS, INC. AND STATE STREET BANK AND TRUST COMPANY
(AS SUCCESSOR TO FLEET NATIONAL BANK), AS TRUSTEE,
RELATING TO $100 MILLION AGGREGATE PRINCIPAL AMOUNT OF
11 3/4% SERIES B SENIOR NOTES DUE 2004
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 8th day of August, 2000, among Xxxx Industries, Inc. (f/k/a
Anchor Advanced Products, Inc.) (the "Issuer"), Anchor Holdings, Inc.
("Holdings") and State Street Bank and Trust Company (as successor to Fleet
National Bank), as trustee (the "Trustee").
WHEREAS, the Issuer, Holdings and the Trustee heretofore executed and
delivered an Indenture, dated as of April 2, 1997, as amended and supplemented
by a First Supplemental Indenture thereto, dated as of March 18, 1998 (as so
amended and supplemented, the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Issuer issued and the Trustee
authenticated and delivered $100 million aggregate principal amount of the
Issuer's 11 3/4% Senior Notes due 2004 (the "Initial Notes"); and
WHEREAS, pursuant to an exchange offer registered with the Securities
and Exchange Commission on a Registration Statement No. 333-26943 on Form S-4,
the Issuer offered to, and did, exchange $100 million in aggregate principal
amount of its 11 3/4% Series B Senior Notes due 2004 (the "Exchange Notes" and,
together with the Initial Notes, the "Notes") for $100 million in aggregate
principal amount of the Initial Notes; and
WHEREAS, the Initial Notes were, and the Exchange Notes are,
unconditionally guaranteed on a senior basis by Holdings; and
WHEREAS, Section 9.02 of the Indenture provides that the Issuer, when
authorized by Board Resolution, and the Trustee, with the written consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
outstanding, may amend the Indenture, subject to certain exceptions (none of
which is applicable to the amendments (the "Amendments") contained in Section
2.01 of this Supplemental Indenture) specified in Section 9.02 of the Indenture;
and
WHEREAS, pursuant to its Offer to Purchase and Consent Solicitation,
dated June 13, 2000, as amended as of July 18, 2000 and as extended (the
"Consent Solicitation"), the Issuer solicited consents of the Holders to the
Amendments, which if adopted would (i) amend the Indenture by adding thereto the
additional covenants and agreements set forth below , (ii) amend the Table of
Contents to the Indenture to include references to new Articles 10 and 11 to be
added to the Indenture, (iii) amend Section 1.01 of the Indenture by adding
thereto certain definitions relating to the new Articles 10 and 11 to be added
to the Indenture, by adding thereto the definition of the term "Borrowing Base"
set forth below and by amending the definitions of the terms "New Credit
Facility" and "Permitted Liens" as set forth below, (iv) amend Section 4.09 of
the Indenture as set forth below, (v) amend Section 4.10 of the Indenture as set
forth below; (vi) amend Article 4 of the Indenture by adding thereto new
Sections 4.18 and 4.19, (vii) amend Section 5.01 of the Indenture as set forth
below, (viii) amend Section 6.01 of the Indenture
as set forth below, (ix) amend Section 6.03 of the Indenture as set forth
below, and (x) amend the Indenture by adding thereto new Articles 10 and 11;
and
WHEREAS, the Holders of not less than a majority in aggregate principal
amount of the outstanding Notes have duly consented to the Amendments set forth
in this Supplemental Indenture in accordance with Section 9.02 of the Indenture;
and
WHEREAS, the Issuer has heretofore delivered or is delivering
contemporaneously herewith to the Trustee (i) a copy of Board Resolutions
authorizing the execution, delivery and performance of this Supplemental
Indenture, (ii) evidence of the written consent of the Holders set forth in the
immediately preceding paragraph, and (iii) an Opinion of Counsel in compliance
with and to the effect set forth in Section 1.01, 9.02 and 9.06 of the
Indenture; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Supplemental Indenture and to make this Supplemental Indenture
valid and binding have been complied with or have been done or performed;
NOW, THEREFORE, in consideration of the foregoing and notwithstanding
any provision of the Indenture which, absent this Supplemental Indenture, might
operate to limit such action, the Issuer, Holdings and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. For all purposes of the Indenture and this
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to the Indenture and this Supplemental Indenture as a whole
and not to any particular Article, Section or subdivision; and
(b) capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indenture.
ARTICLE II
AMENDMENTS AND WAIVER
SECTION 2.01. AMENDMENTS. Subject to Section 3.01 hereof, the Indenture
is hereby amended in the following respects:
(a) In addition to all of their other covenants and agreements set
forth in the Indenture, the Guarantor and the Issuer hereby covenant and agree
as follows (which additional covenants and agreements shall constitute a
collective amendment of the Indenture). Effective upon the effectiveness of the
Amendments as provided in Section 3.01 hereof, the Guarantor and
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the Issuer shall cause to be executed and delivered to the Trustee (and the
Trustee is authorized to execute and deliver) the following documents in form
and substance satisfactory to the Trustee:
(i) security agreements, pledge agreements, mortgages and
deeds of trust between the Trustee and the Issuer evidencing perfected
security interests in and valid liens on substantially all of the
tangible and intangible real and personal property and fixtures of the
Issuer (the "Collateral Documents"); and
(ii) an intercreditor agreement among Bank of America, N.A.,
the Trustee and the Issuer evidencing the subordination of the security
interests and liens granted pursuant to the Collateral Documents to the
security interests and liens granted pursuant to the New Credit
Facility.
(b) The Index to the Indenture is hereby amended by inserting the
following new Articles 10 and 11 and renumbering accordingly the subsequent
Articles.
ARTICLE 10
COLLATERAL
Section 10.01 Collateral Documents; Additional Collateral................................
Section 10.02 Recording, Registration and Opinions.......................................
Section 10.03 Release of Collateral......................................................
Section 10.04 Possession and Use of Collateral...........................................
Section 10.05 Insurance and Condemnation Proceeds........................................
Section 10.06 Environmental Laws.........................................................
Section 10.07 Specified Releases of Collateral...........................................
Section 10.08 Disposition of Collateral Without Release..................................
Section 10.09 Form and Sufficiency of Release............................................
Section 10.10 Purchaser Protected........................................................
Section 10.11 Authorization of Actions To Be Taken by the Trustee Under the
Collateral Documents......................................................
Section 10.12 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents......................................................
ARTICLE 11
APPLICATION OF TRUST MONIES
Section 11.01 Collateral Account.........................................................
Section 11.02 Withdrawal of Insurance Proceeds and Condemnation Awards...................
Section 11.03 Withdrawal of Net Cash Proceeds to Fund an Asset Sale Offer................
Section 11.04 Withdrawal of Trust Monies for Investment in Replacement Assets............
Section 11.05 Investment of Trust Monies.................................................
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(c) Section 1.01 of the Indenture is hereby amended by adding thereto
the following definitions:
"BORROWING BASE" means, as of any date, an amount equal to the sum
of (a) 85% of the face amount of all accounts receivable owned by the
Issuer and its Restricted Subsidiaries as of such date that are not
more than 90 days past due, plus (b) 50% of the book value of all
inventory (excluding work in progress) owned by the Issuer and its
Restricted Subsidiaries as of such date, plus (c) 25% of the book value
of all inventory owned by the Issuer and its Restricted Subsidiaries as
of such date that is work in progress, all calculated on a consolidated
basis and in accordance with GAAP. To the extent that information is
not available as to the amount of accounts receivable or inventory or
trade payables as of a specific date, the Issuer may utilize the most
recent available information for purposes of calculating the Borrowing
Base.
"COLLATERAL" means any assets of the Issuer or any 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" means, collectively, the Mortgages and
Deeds of Trust, any Stock Pledge Agreements, this Indenture, as
supplemented, the Issuer Subordinated Security Agreement, the
Intercreditor Agreement and all other pledges, agreements, instruments,
financing statements, filing or other documents that evidence, set
forth or limit the Lien in favor of the Trustee in the Collateral.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement
substantially in the form attached as Exhibit F to this Indenture.
"ISSUER SUBORDINATED SECURITY AGREEMENT" means the Subordinated
Security Agreement substantially in the form attached as Exhibit C to
this Indenture.
"MORTGAGES AND DEED OF TRUST" means the Mortgages and Deeds of
Trust of even date herewith listed on Exhibit D to this Indenture, or
such other mortgages and deeds of trust in form and substance
satisfactory to the Trustee.
"NET AWARDS" 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.
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"NET INSURANCE PROCEEDS" means any insurance proceeds (excluding
liability insurance proceeds payable to the Trustee for any loss,
liability of 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.
"STOCK PLEDGE AGREEMENT" means any Pledge Agreement substantially
in the form attached as Exhibit E to this Indenture.
"TRUST MONIES" means all cash and cash equivalents received by the
Trustee (i) (subject to the Intercreditor Agreement) upon the release
of Collateral from the Lien of this Indenture or the Collateral
Documents, including all Net Proceeds from the sale of Collateral (and
amounts deemed, pursuant to this Indenture, to constitute Net Proceeds
from the sale of Collateral) and all moneys received in respect of the
principal of all purchase money, governmental and other obligations;
(ii) as Net Insurance Proceeds (subject to the Intercreditor
Agreement); (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) (subject to the Intercreditor Agreement)
which constitute Net Proceeds from the sale of Collateral or are deemed
pursuant to this Indenture to constitute Net Proceeds from the sale of
Collateral from any transaction which results in a Guarantor being
released from its 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.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of the
United States of America for the payment of which the full faith and
credit of the United States of America is pledged.
(d) Section 1.01 of the Indenture is hereby further amended by
amending the definition of the term "New Credit Facility" to read as follows:
"NEW CREDIT FACILITY" means that certain Amended and Restated
Credit Agreement, dated as of August 9, 2000, by and among the Issuer,
the lenders party thereto in their capacities as lenders thereunder and
Bank of America, N.A., as agent, providing for up to $50.0 million of
revolving credit borrowings and a $35.0 million term loan, including
any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time
to time.
(e) Section 1.01 of the Indenture is hereby further amended by
amending clause "(ii)" of the definition of the term "Permitted Liens" to read
as follows:
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(ii) any Lien securing obligations under the New Credit
Facility and any Guarantee thereof, which obligations or Guarantee are
permitted by the terms of this Indenture to be incurred and
outstanding, and any Lien securing obligations under the Notes and any
Guarantee thereof, provided that any such Lien is at all times
subordinate to any Liens then in existence securing obligations under
the New Credit Facility and any Guarantee thereof;
(f) Section 4.09 of the Indenture is hereby amended by amending and
restating subparagraph (i) of the second paragraph thereof to read as follows:
(i) the incurrence by the Issuer and its Restricted
Subsidiaries of Indebtedness under the New Credit Facility (including
up to $50.0 million of revolving credit borrowings and a $35.0 million
term loan) or any other credit facilities; PROVIDED that the aggregate
principal amount of all revolving credit Indebtedness and letters of
credit of the Issuer and its Subsidiaries outstanding under all such
credit facilities after giving effect to such incurrence (with letters
of credit being deemed to have a principal amount equal to the maximum
potential liability of the Issuer and its Subsidiaries thereunder) does
not exceed the greater of (x) $50.0 million or (y) the amount of the
Borrowing Base as of the date of such incurrence;
(g) Section 4.10 of the Indenture is hereby amended by amending and
restating the second paragraph thereof and by adding thereto a new third
paragraph thereof to read as follows:
Subject to the next succeeding paragraph, within 360 days after
receipt of any Net Proceeds from an Asset Sale, the Issuer or its Restricted
Subsidiary, as the case may be, may apply such Net Proceeds from such Asset Sale
to permanently reduce Indebtedness under the New Credit Facility in accordance
with its terms, if applicable, or to the extent not required to be applied
thereunder, may, at its option, apply such Net Proceeds to repayment of
Indebtedness of a Restricted Subsidiary (in the case of Net Proceeds from an
Asset Sale effected by a Restricted Subsidiary) or to an investment in a
Restricted Subsidiary or in another business or capital expenditure or other
long-term/tangible assets, in each case, in the same or a similar line of
business as the Issuer or any of its Restricted Subsidiaries were engaged in on
the date of this Indenture or in businesses reasonably related thereto. Pending
the final application of any such Net Proceeds, the Issuer may temporarily
reduce Indebtedness under the New Credit Facility or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph shall be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Issuer 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
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price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon 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 Issuer may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
Notwithstanding any provisions hereof to the contrary (including,
without limitation, the immediately preceding paragraph), with respect to the
first $50.0 million of Net Proceeds from all Asset Sales consummated after
August 1, 2000, within 15 days after the receipt of any such Net Proceeds from
any such Asset Sale, the Issuer or its Restricted Subsidiary, as the case may
be, shall be required to make an Asset Sale Offer to purchase the maximum
principal amount of Notes that may be purchased out of 100% of such Net
Proceeds, at an offer price in cash in an amount equal to (i) 85% of the
principal amount thereof if the Asset Sale was consummated on or prior to March
31, 2001 pursuant to a definitive agreement executed and delivered by the
parties thereto on or prior to December 31, 2000, or (ii) 100% of the principal
amount thereof if the Asset Sale was consummated pursuant to a definitive
agreement executed and delivered by the parties thereto after December 31, 2000,
in each case in accordance with the procedures set forth in Section 3.09 hereof.
In each case the Company shall pay accrued and unpaid interest to the date of
purchase on Notes tendered pursuant to an Asset Sale Offer. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Net Proceeds available to purchase Notes in respect of any such Asset Sale
Offer, the Trustee shall select the Notes to be purchased on a pro rata basis.
Upon the completion of any Asset Sale Offer made pursuant to this paragraph as
to which the Net Proceeds available to purchase Notes in respect thereof
together with the Net Proceeds made available in respect of all previous Asset
Sale Offers made pursuant to this paragraph is sufficient to offer to purchase
the then remaining outstanding Notes, the provisions of Sections 4.02 to 4.19,
inclusive, Sections 5.01 and 5.02, Sections 6.01(3), (4), (5), (6), (9), (10),
(11), (12), (13)and (14), the last paragraph of Section 6.01 and Sections 12.01
and 12.02 of this Indenture shall thereafter be deemed to be of no further force
and effect and any remaining security interests granted by the Issuer to the
Trustee to secure the obligations evidenced by the Notes shall automatically
terminate.
(h) Article 4 of the Indenture is hereby amended by adding thereto the
following Sections 4.18 and 4.19:
SECTION 4.18 IMPAIRMENT OF SECURITY INTERESTS
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Neither Holdings nor the Issuer nor any of its Subsidiaries shall take
or omit to take any action which action or omission could reasonably by 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.
SECTION 4.19 ADDITIONAL COLLATERAL
As soon as practicable after the date hereof, the Issuer shall take (or
shall cause the appropriate Guarantor or Subsidiary to take) all actions
necessary to grant to the Trustee and perfect a Lien on the Issuer's (or such
Guarantor's or Subsidiary's) additional Collateral acquired after the date of
this Indenture.
(i) Section 5.01 of the Indenture is hereby amended by deleting the
word "and" appearing in the first paragraph thereof before clause "(iv)" thereof
and adding to the end of such first paragraph the following language:
; and (v) 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 to perfect any security interests in such Collateral which may
be perfected by the filing of a financing statement other than
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 assets to be
made subject to the Lien of the Collateral Documents, and perfect such
security interest in such Collateral, in the manner and to the extent
required in the Indenture.
(j) Section 6.01 is hereby amended by deleting the word "and"
appearing before clause "(9)" thereof and adding to the end of the first
paragraph thereof the following provisions:
(10) Guarantor, the Issuer or any of its Subsidiaries fails to
comply with any of its other agreements or covenants in, or provisions
of, the Collateral Documents and the default continues for the period
and after the notice specified in Section 6.03;
(11) a default by a Guarantor, the Issuer 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 a Guarantor, the Issuer or any Subsidiary of its Obligations under
the Collateral Documents or the determination in a judicial proceeding
that
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the Collateral Documents are unenforceable or invalid against Holdings,
the Issuer or any of its Subsidiaries for any reason;
(12) any loss, theft, damage or destruction of any item or items
of Collateral or other property of the Issuer or any Subsidiary occurs
which could reasonably be expected to cause a material adverse effect
to the Collateral and is not adequately covered by insurance;
(13) any Collateral Document ceases to be in full force and effect
or any Lien with respect to any portion of the Collateral intended to
be secured thereby ceases to be, or is not, valid, perfected and prior
to all other liens (other than the Permitted Liens, including without
limitation, under the New Credit Facility) or is terminated, revoked or
declared void; and
(14) any Event of Default under the New Credit Facility and
related security documents.
(k) Section 6.03 of the Indenture is hereby amended by adding to the
end of the first paragraph thereof the phrase "or the Collateral Documents."
Section 6.03 of the Indenture is hereby further amended by adding after the
second paragraph thereof the following provisions:
If an Event of Default has occurred and is continuing: (i) the Trustee
shall have for the benefit of the Holders, in addition to all other rights of
the Trustee and the Holders, the rights and remedies of a secured party under
the Collateral Documents and the Uniform Commercial Code; (ii) the Trustee may,
at any time, take possession of the Collateral and keep it on the Issuer's
premises, at no cost to the Trustee or any Holder, or remove any part of it to
such other place or places as the Trustee may desire, or the Issuer shall, upon
the Trustee's demand, at the Issuer's cost, assemble the Collateral and make it
available to the Trustee at a place reasonably convenient to the Trustee; and
(iii) the Trustee may sell and deliver any Collateral at public or private
sales, for cash, upon credit or otherwise, at such prices and upon such terms as
the Trustee deems advisable, in its sole discretion, and may, if the Trustee
deems it reasonable, postpone or adjourn any sale of the Collateral by an
announcement at the time and place of sale or of such postponed or adjourned
sale without giving a new notice of sale. Without in any way requiring notice to
be given in the following manner, the Issuer agrees that any notice by the
Trustee of sale, disposition or other intended action hereunder or in connection
herewith, whether required by the Uniform Commercial Code or otherwise, shall
constitute reasonable notice to the Issuer if such notice is mailed by
registered or certified mail, return receipt requested, postage prepaid, or is
delivered personally against receipt, at least ten (10) days prior to such
action to the Issuer's address specified in or pursuant to SECTION 13.02. If any
Collateral is sold on terms other than payment in full at the time of sale, no
credit shall be given against the Obligations under the Notes until the Trustee
or the Holders receive payment, and if the buyer defaults in payment, the
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Trustee may resell the Collateral without further notice to the Issuer. In the
event the Trustee seeks to take possession of all or any portion of the
Collateral by judicial process, the Issuer irrevocably waives: (A) the posting
of any bond, surety or security with respect thereto which might otherwise be
required; (B) any demand for possession prior to the commencement of any suit or
action to recover the Collateral; and (C) any requirement that the Trustee
retain possession and not dispose of any Collateral until after trial or final
judgment. The Issuer agrees that the Trustee has no obligation to preserve
rights to the Collateral or marshal any Collateral for the benefit of any
Person. The Trustee is hereby granted a license or other right to use, without
charge, the Issuer's labels, patents, copyrights, name, trade secrets, trade
names, trademarks, and advertising matter, or any similar property, in
completing production of, advertising or selling any Collateral, and the
Issuer's rights under all licenses and all franchise agreements shall inure to
the Trustee's benefit for such purpose. The proceeds of sale shall be applied
first to all expenses of sale, including attorneys' fees, and then to the
Obligations. The Trustee will return any excess to the Issuer and the Issuer
shall remain liable for any deficiency.
If an Event of Default occurs and is continuing, the Issuer hereby
waives all rights to notice and hearing prior to the exercise by the Trustee of
the Trustee's rights to repossess the Collateral without judicial process or to
reply, attach or levy upon the Collateral without notice or hearing.
(l) The Indenture is hereby amended by adding after Article 9 thereof
the following Articles 10 and 11, by renumbering the subsequent existing
Articles and Sections accordingly and by amending each and every reference to
such renumbered existing Articles and Sections accordingly:
SECTION 10.01 COLLATERAL DOCUMENTS; ADDITIONAL COLLATERAL
(a) In order to secure the due and punctual payment of the principal
of, interest on and premium, if any, on the Notes when and as the same shall
become due and payable, whether on an interest payment date, at maturity, upon
any Asset Sale or Change of Control, 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 Issuer and the Guarantors to the Holders or the Trustee under
this Indenture, the Notes, the Guarantees, and any other documents contemplated
hereby, as the case may be, the Issuer, the Guarantors and the Trustee, as
applicable, have simultaneously with the execution of this Indenture entered
into the Collateral Documents. The Trustee, the Issuer and the 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.
Each of the Issuer and the Guarantors covenants and agrees that it will execute,
acknowledge and deliver to the Trustee such further assignments, transfers,
assurances or other
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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.
(b) Promptly upon the acquisition or receipt by the Issuer or its
Subsidiaries or any of the 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 Issuer or a Subsidiary or Guarantor,
pursuant to an Asset Sale) 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 Issuer or the applicable Subsidiary or Guarantor,
as the case may be, and the Trustee will enter into 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 Issuer 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 Lien on and security
interest in such After-Acquired Property in favor of the Trustee
(subject only to, in the case of After-Acquired Property that
constitutes New Credit Facility Collateral, to the Permitted Liens
including, but without limitation, under the New Credit Facility), the
Issuer shall cause appropriate financing statements to be filed in such
governmental offices as shall be necessary in order to perfect any
security interest in such After-Acquired Property as to which a
security interest may, under the Uniform Commercial Code of the
applicable jurisdiction, be perfected by the filing of a financing
statement 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, a security interest may be perfected
by possession, deliver such certificates, promissory notes and other
property, together with stock powers or assignments duly endorsed in
blank, to the Trustee; and
(ii) the Issuer or the applicable Subsidiary Guarantor, as
the case may be, shall also deliver to the Trustee the following:
(x) [intentionally omitted];
(y) any Opinions of Counsel required pursuant to
Section 10.02(b) below; and
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(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 Issuer 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) The Trustee shall enter into and be bound by the terms of the
Intercreditor Agreement.
SECTION 10.02 RECORDING, REGISTRATION AND OPINIONS
(a) The provisions of this Indenture, and the Collateral Documents
create legal and valid Liens in the Collateral in favor of the Trustee for the
ratable benefit of the Holders, and such Liens constitute perfected and
continuing Liens on all the Collateral, having priority over all other liens on
the Collateral (except for the Permitted Liens including, but without
limitation, under the New Credit Facility) securing all Obligations owed to
Holders pursuant to the Notes and this Indenture. The Issuer and the Guarantors
have taken or caused to be taken and shall take or cause to be taken all action
required to perfect, maintain, preserve and protect the Lien on and prior
security interest in the Collateral granted by the Collateral Documents (subject
only to the Permitted Liens including, but without limitation, under the New
Credit Facility), 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 items comprising the Collateral. The Issuer and the
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 pursuant to the
Collateral Documents. The Trustee shall not be responsible for any failure to so
register, file or record.
(b) The Issuer shall furnish to the Trustee, promptly after the
execution and delivery of this Indenture, an Opinion of Counsel either (i) 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
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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 perfect such security interest therein and
that no re-recordings, re-registrations or refilings are necessary to maintain
such notice or perfection (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 Issuer
or the applicable 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, have been duly
authorized, executed and delivered by, and constitute the valid, binding and
enforceable obligations of the Issuer or the relevant Guarantor, as the case may
be, subject to customary exceptions. In addition, promptly after execution and
delivery of this Indenture, the Issuer shall deliver the opinion required by TIA
Section 314(b).
(c) [intentionally omitted].
(d) The Issuer shall furnish to the Trustee on June 30 in each year,
beginning with June 30, 2001, 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 the perfected security interest in the
Collateral 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 perfected security interests of the Holders and
the Trustee hereunder and under the Collateral Documents
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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 Issuer shall cause a continuation statement to be
timely filed so as to maintain such Liens and perfected 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) Anything herein to the contrary notwithstanding, subject to the
Intercreditor Agreement, at any time when an Event of Default shall have
occurred and be continuing, no release of Collateral pursuant to the provisions
of this Indenture or the Collateral Documents shall be effective as against the
Holders.
(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 Issuer shall cause TIA Section 314(d) relating to 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 Issuer, 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.
SECTION 10.04 POSSESSION AND USE OF COLLATERAL
Subject to and in accordance with the provisions of this Indenture and
the Collateral Documents (including, but not limited to, the Intercreditor
Agreement), 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 Issuer and the 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 with the
Trustee, 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
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held by the Trustee, other than monies and U.S. Government Obligations deposited
with the Trustee 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. The Issuer shall, and shall cause
each of its Subsidiaries to, maintain all of such Collateral as is necessary and
useful in the conduct of its business, in good operating condition and repair,
ordinary wear and tear accepted.
SECTION 10.05 INSURANCE AND CONDEMNATION PROCEEDS
(a) The Issuer shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound reputable insurers having a
rating of at least A+ or better by Best Rating Guide, insurance against loss or
damage by fire with extended coverage; theft, burglary, pilferage and loss in
transit; public liability and third party property damage; larceny, embezzlement
or other criminal liability; business interruption; public liability and third
party property damage; and such other hazards or of such other types as is
customary for persons engaged in the same or similar business, as the Issuer, in
its discretion, or acting at the direction of the Holders, shall specify, in
amount, and under policies acceptable to the Holders. Without limiting the
foregoing, the Issuer shall also maintain, and shall cause each of its
Subsidiaries to maintain, flood insurance, in the event of a designation of the
area in which any Collateral covered by the Mortgages is located as
"flood-prone" or a "flood risk area" as defined by the Capital Flood Disaster
Protection Act of 1973, in an amount to be reasonably determined by the Issuer
approximating the value of the Collateral so insured, and shall comply with the
additional requirements of the National Flood Insurance Program as set forth in
said Act. The Issuer shall also maintain flood insurance for its inventory and
equipment which is, at any time, located in such an area.
(b) The Issuer shall cause the Trustee, for the ratable benefit of the
Holders, to be named as secured party or mortgagee and loss payee as its
interest shall appear and additional insured. Each policy of insurance shall
contain a clause or endorsement requiring the insured to give not less than ten
(10) days prior written notice to the Trustee in the event of cancellation of
the policy for any reason whatsoever and a clause or endorsement stating that
the interest of the Trustee shall not be impaired or invalidated by any act or
neglect of the Issuer or any of its Subsidiaries or the owner of any real estate
for purposes more hazardous than are permitted by such policy. All premiums for
such insurance shall be paid by the Issuer when due, and certificates of
insurance and photo copies of the policy shall be delivered to the Trustee, in
each case in sufficient quantity for distribution by the Trustee to each of the
Holders. If the Issuer fails to procure such insurance or to pay the premiums
therefore when due, the Trustee
15
may procure such insurance and shall be fully indemnified and held harmless for
such expenditure as provided herein.
(c) The Issuer shall promptly notify the Trustee of any loss, damage
or destruction to the Collateral with value exceeding $500,000, whether or not
covered by insurance. Subject to and in accordance with the provisions of this
Indenture and the Collateral Documents (including, but not limited to, the
Intercreditor Agreement), the Trustee shall be authorized to collect all
insurance and condemnation proceeds in respect of the Collateral directly and to
apply or remit them as follows:
(i) With respect to insurance and condemnation proceeds
relating to Collateral other than equipment and real property, after
deducting from such proceeds the reasonable expenses, if any, incurred
by the Trustee in collection or handling thereof, the Trustee shall
apply such proceeds ratably to the reduction of the Obligations owed
pursuant to the Notes and this Indenture.
(ii) With respect to insurance and condemnation proceeds
relating to Collateral consisting of equipment and real property, the
Trustee shall permit or require the Issuer to use such proceeds, or any
part thereof, to replace, repair, restore, rebuild equipment and real
property in a diligent and expeditious manner with materials and
workmanship with substantially the same quality that existed before the
loss, damage or destruction; so long as (A) no Default or Event of
Default has occurred and is continuing, (B) the aggregate proceeds do
not exceed $1 million and (C) the Issuer first (1) provides the Trustee
and the Holders with plans and specifications for any such repair or
restoration which shall be reasonably satisfactory to the Trustee and
the Holders and (2) demonstrates to the reasonable satisfaction of the
Trustee and the Holders that the funds available to it will be
sufficient to complete such project in the manner provided therein. In
all other circumstances, the Trustee shall apply such insurance and
condemnation proceeds to the reduction of the Obligations owed to the
Holders pursuant to the Notes and this Indenture.
SECTION 10.06 ENVIRONMENTAL LAWS
(a) The Issuer shall, and shall cause each of its Subsidiaries to,
conduct business in compliance with all environmental laws applicable to it,
including those relating to generation, handling, used, storage and disposal of
any contaminant. The Issuer shall, and shall cause each of its Subsidiaries to,
take prompt and appropriate action to respond to any noncompliance with
environmental laws and shall regularly report to the Trustee on such response.
(b) Without limiting the generality of the foregoing, the Issuer shall
submit to the Trustee annually, commencing on June 30, 2001, and on each
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anniversary of such date thereafter, an update of the status of each material
environmental compliance liability issue. The Trustee or any Holders may request
copies of technical reports prepared by the Issuer and its communications with
any governmental authority to determine whether the Issuer or any of its
subsidiaries is proceeding reasonably to correct, cure or contest in good faith
any alleged material noncompliance or environmental liability. The Issuer shall,
at the Trustee's request and at the Issuer's expense, (i) retain an independent
environmental engineer acceptable to the Trustee to evaluate the site, including
tests if appropriate, where the material noncompliance or related noncompliance
with environmental laws has occurred and prepare and deliver to the Trustee, in
sufficient quantity for distribution by the Trustee to the Holders, a report
setting forth results of each such evaluation, and proposed plan for responding
to any environmental problems described therein, and an estimate of the cost
thereof, and (ii) provide to the Trustee and the Holders a supplemental report
of such engineer whenever the scope of environmental problems, or the response
thereto or the estimated cost thereof, shall increase in any material respect.
(c) Representatives of the Trustee and/or Holders will have the right
at any reasonable time to enter or visit the real property comprising any of the
Collateral and any other place where any property of the Issuer is located for
purposes of observing the same, taking and removing soil or groundwater samples,
and conducting tests on any part of the Collateral if such representative
believes that such Collateral is not in compliance with environmental laws. The
Trustee is under no duty, however, to visit or observe the Collateral or to
conduct such tests. Any such acts by the Trustee or its representatives will be
solely for the purposes of protecting the Trustee's liens and preserving the
Trustee's and the Holders' rights under the Indenture. No site visit,
observation or testing by the Trustee representatives will result in a waiver of
any Default of the Issuer or impose any liability on the Trustee or the Holders.
In no event will any site visit, observation or testing by the Trustee
representative be a representation that hazardous substances are or are not
present in, or under the property comprising the Collateral, or that there has
been or will be compliance with any environmental law. Neither the Issuer nor
any other party is entitled to rely on any site visit, observation or testing by
the Trustee representatives. The Trustee and the Holders owe no duty of care to
protect the Issuer or any other party against or to inform the Issuer or any
other party of, any hazardous substances or any other adverse condition
affecting the Collateral. The Trustee may in its discretion disclose to the
Issuer or to any other party and shall disclose to each such party as so
required by law any report or findings made as a result of, or in connection
with, any site visit or observation or testing by the Trustee representative.
The Issuer understands and agrees that the Trustee makes no warranties or
representations to the Issuer or any other party regarding the truth, accuracy
or completeness of any such report or findings that may be disclosed. The Issuer
also understands that depending on the results of any site visit, observation or
testing by the Trustee or its representatives and disclosed to the Issuer, the
Issuer may have a legal obligation to notify one or more environmental
17
agencies of the results, that such reporting requirements are site specific, and
are to be evaluated by the Issuer without advice or assistance from the Trustee.
In each instance, the Trustee will give the Issuer reasonable notice before
entering the property comprising the Collateral or any other place the Trustee
is permitted to enter under this section. The Trustee will make reasonable
efforts to avoid interfering with the Issuer's use of the Collateral or any
other property in exercising any rights provided hereunder.
SECTION 10.07 SPECIFIED RELEASES OF COLLATERAL
(a) SATISFACTION and DISCHARGE; DEFEASANCE. The Issuer and the
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 payment in
full of all principal, premium, if any, and interest, on the Notes and of all
Obligations for the payment of money due and owing to the Trustee or the
Holders, or upon compliance with the conditions precedent set forth in Article 8
for Legal Defeasance or Covenant Defeasance. Upon delivery by the Issuer 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),
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 Issuer) to release and reconvey to the Issuer
and the applicable Subsidiary Guarantors without recourse all of the Collateral,
and shall deliver such Collateral in its possession to the Issuer and the
applicable Guarantors including, without limitation, the execution and delivery
of releases and satisfactions wherever required.
(b) DISPOSITIONS OF COLLATERAL PERMITTED BY SECTION 4.10. The Issuer
and the 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 Issuer shall have delivered to the Trustee the following:
(i) an order of the Issuer requesting release of Released
Collateral (an "Issuer Order"), such Issuer 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 Issuer 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
18
Collateral in a bona fide sale to a Person that is not an Affiliate of
the Issuer 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 4.11 hereof, (F) certifying that such Asset Sale complies
with the terms and conditions of this Indenture, including, without
limitation, Section 4.10 hereof and the Intercreditor Agreement 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
4.10 hereof, (B) subject to and in accordance with the provisions of
this Indenture and the Collateral Documents (including, but not limited
to, the Intercreditor Agreement), all Collateral 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 (and any other property which is not Collateral) will be
applied pursuant to Section 4.10, (C) there is not and will not be a
Default or Event of Default in effect or continuing on the date
thereof, 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 requirements of this Indenture and that all
conditions precedent herein provided for relating to such release have
been complied with.
Upon compliance by the Issuer with the conditions precedent set forth
above, the Trustee shall cause to be released and reconveyed to the Issuer or
the applicable Subsidiary Guarantor the Released Collateral without recourse by
executing a release in the form provided by the Issuer or the applicable
Subsidiary Guarantor.
19
(c) EMINENT DOMAIN, EXPROPRIATION AND OTHER GOVERNMENTAL TAKINGS. The
Issuer and the 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 Issuer shall have delivered to
the Trustee the following:
(i) an Officers' Certificate of the Issuer 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, subject to and in accordance with the
provisions of this Indenture and the Collateral Documents (including,
but not limited to, the Intercreditor Agreement), 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 Issuer with the conditions precedent set forth
above, the Trustee shall cause to be released and reconveyed to the Issuer or
the applicable Subsidiary Guarantor without recourse the aforementioned items of
Collateral by executing a release in the form provided by the Issuer 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 Issuer (action on
behalf of itself or any 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)
specified by the Issuer ("Released Property") provided (i) the fair market value
of the Released Property in any single transaction, or series of related
transactions, shall not exceed $1,000,000, and (ii) prior to granting such
release, the Issuer shall provide the Trustee with the following:
20
(i) an Issuer Order requesting release of Released Property,
such Issuer 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 Issuer 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 $1,000,000;
(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 Issuer with the conditions precedent set forth
above, the Trustee shall cause to be released and reconveyed to the Issuer
without recourse the aforementioned items of Collateral by executing a release
in the form provided by the Issuer.
SECTION 10.08 DISPOSITION OF COLLATERAL WITHOUT RELEASE
Notwithstanding the provisions of Section 10.07 and subject to Sections
10.09 below, so long as no Default or Event of Default shall have occurred and
be continuing or would result therefrom, the Issuer and the 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 Lien on, security interest in or on, or 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 $1,000,000 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
21
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 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 Issuer (as evidenced by a Board Resolution
delivered to the Trustee if it involves Collateral having, a fair market
value in excess of $1,000,000) such demolition, dismantling, tearing down,
scrapping or abandonment is in the best interests of the Issuer, 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 Issuer or its Subsidiaries.
SECTION 10.09 FORM AND SUFFICIENCY OF RELEASE
In the event that the Issuer 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
10.07 or 10.08 may be sold, exchanged or otherwise disposed of by the Issuer or
any Guarantor, and the Issuer or such Guarantor requests the Trustee to furnish
a written disclaimer, release or quitclaim of any interest in such property
under this Indenture, the applicable Guarantee of the Notes and the Collateral
Documents, upon being satisfied that the Issuer or such Guarantor is selling,
exchanging or otherwise disposing of the Collateral in accordance with the
provisions of Section 10.07 or 10.08 (which may include receipt of an Officers'
Certificate or Opinion of Counsel upon the request of the Trustee), the Trustee
shall execute, acknowledge and deliver to the Issuer or such Subsidiary
Guarantor such an instrument in the form provided by the Issuer and reasonably
satisfactory to the Trustee, 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 Issuer 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.
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SECTION 10.10 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.
SECTION 10.11 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)
enforce any of the terms of the Collateral Documents and (ii) collect and
receive any and all amounts payable in respect of the Obligations of the Issuer
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 10.12 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.
23
ARTICLE 11
APPLICATION OF TRUST MONIES
SECTION 11.01 COLLATERAL ACCOUNT
On the date of this Indenture 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 4.10; 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.
SECTION 11.02 WITHDRAWAL OF INSURANCE PROCEEDS AND CONDEMNATION AWARDS
SECTION
To the extent that any Trust Monies consist of either (a) Net Insurance
proceeds or (b) Net Awards, such Trust Monies, subject to and in accordance with
the provisions of this Indenture and the Collateral Documents (including, but
not limited to, the Intercreditor Agreement), may be withdrawn by the Issuer and
shall be paid by the Trustee upon an Issuer request delivered to the Trustee to
reimburse the Issuer or the applicable Subsidiary or Guarantor for expenditures
made, or to pay costs incurred, by the Issuer or such Subsidiary or 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 Issuer or such Subsidiary or 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 Issuer or such Subsidiary
or Guarantor at the date of the acquisition thereof by the Issuer or
such Subsidiary or 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
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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 10.07(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 Issuer, 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 Lien 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 Issuer's or such
Subsidiary or Guarantor's business;
(vi) that the Issuer or such Subsidiary or 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
(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, rebuilding 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
25
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 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
Issuer 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,
rebuilding and replacements for the benefit of the Holders in favor of
the Trustee 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 Issuer'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 an Issuer 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 Issuer
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 Issuer, 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 Issuer or the
applicable Subsidiary Guarantor such Net
26
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 Collateral Proceeds
received by the Trustee pursuant to the provisions of Section 4.10 hereof and an
Asset Sale Offer has been made in accordance therewith, such Trust Monies may be
withdrawn by the Issuer and shall be paid by the Trustee to the Paying Agent for
application in accordance with Section 4.10 upon an Issuer 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 Net Proceeds from
the sale of Collateral or are deemed, pursuant to Section 4.10, to
constitute Net Proceeds from the sale of Collateral, (y) that pursuant
to and in accordance with Section 4.10, the Issuer has made an Asset
Sale Offer and (z) the 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
Issuer Order, subject to Section 4.10.
SECTION 11.04 WITHDRAWAL OF TRUST MONIES FOR INVESTMENT IN REPLACEMENT
ASSETS
In the event the Issuer intends to reinvest Net Proceeds of an Asset
Sale in replacement assets (the "Released Trust Monies"), such Collateral
Proceeds constituting Trust Monies may be withdrawn by the Issuer and shall be
paid by the Trustee to the Issuer upon an Issuer Order to the Trustee and upon
receipt by the Trustee of the following:
27
(a) a notice signed by the Issuer (each, a "Trust Monies Release
Notice"), 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;
(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 Lien and security interest (subject only to Permitted Liens including,
but without limitation, under the New Credit Facility) 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 (i)
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 to the extent
that such replacement assets were acquired with Net Proceeds from the
sale of Collateral, 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 subject only to Permitted Liens including, but without
limitation, under the New Credit Facility 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.
28
Upon compliance with the foregoing provisions, the Trustee shall apply
the Released Trust Monies as directed and specified by the Issuer.
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 an Issuer 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 an Issuer 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 Issuer.
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.
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.
(m) Section 13.02 of the Indenture is hereby amended by amending and
restating the first paragraph thereof to read as follows:
Any notice or communication by the Issuer, a Guarantor 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 guarantying next day delivery, to the
others' address:
If to the Issuer:
Xxxx Industries, Inc.
Tyson Place, Suite 200
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
29
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
If to a Guarantor:
x/x Xxxxxx Xxxxxxxx, Xxx.
Xxxxx Xxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
Telecopier No.: (000) 000-0000
If to the Trustee:
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxx & Xxxxx, P.C.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
ARTICLE III
MISCELLANEOUS
SECTION 3.01. EFFECTIVENES. This Supplemental Indenture shall become
effective upon its execution and delivery by the Issuer, Holdings and the
Trustee. Notwithstanding the execution and delivery of the Supplemental
Indenture by the Issuer, Holdings and the Trustee, the Amendments shall become
effective only concurrently with the execution and delivery of the Issuer's new
secured credit facility, the payment of the Purchase Price (as defined in the
Consent Solicitation) and the making of the Consent Payment (as defined in the
Consent Solicitation). The Purchase Price and Consent Payment will be deemed to
have been made when paid by the
30
deposit with the Depositary (as defined in the Consent Solicitation), which will
act as the agent for the tendering and consenting Holders and transmit such
payment to such Holders. The Indenture will remain in effect without giving
effect to the Amendments until the execution and delivery of the new secured
credit facility and the Purchase Price is paid and the Consent Payment is made.
Upon the execution and delivery of this Supplemental Indenture by the Issuer,
Holdings and the Trustee, the Indenture shall be supplemented in accordance
herewith, and this Supplemental Indenture shall form a part of the Indenture for
all purposes, and every Holder of Notes heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby. Notwithstanding the
foregoing provisions of this Section 3.01, if the new secured credit facility is
not executed and delivered and the Purchase Price is not paid and the Consent
Payment is not made on or prior to August 10, 2000, the Amendments will not
become effective and this Supplemental Indenture will become null and void.
SECTION 3.02. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 3.03. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. CONFIRMATION AND PRESERVATION OF INDENTURE. The Indenture
as supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
SECTION 3.05. CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), that is
required under the Trust Indenture Act to be part of and govern any provision of
this Supplemental Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of the Trust Indenture Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture, as
the case may be.
SECTION 3.06. SEVERABILITY. In case any provision in this Supplemental
Indenture 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 3.07. HEADINGS. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 3.08. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this
Supplemental Indenture or the Notes, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the
31
Notes, any benefit of any legal or equitable right, remedy or claim under the
Indenture, this Supplemental Indenture or the Notes.
SECTION 3.09. SUCCESSORS. All agreements of the Issuer and Holdings in
this Supplemental Indenture shall bind their respective successors. All
agreements of the Trustee in this Supplemental Indenture shall bind its
successors.
SECTION 3.10. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
contained herein shall be taken as the statements of the Issuer and Holdings,
and the Trustee assumes no responsibility for their correctness. The Trustee
shall not be liable or responsible for the validity or sufficiency of this
Supplemental Indenture.
SECTION 3.11. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability or affording protection to the Trustee, whether or not elsewhere
herein so provided.
SECTION 3.12. GOVERNING LAW. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
SECTION 3.13. COUNTERPART ORIGINALS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be original, but
all of them together represent the same agreement.
32
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
XXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
(SEAL)
Attest: /s/ Xxxxxxxx X. xx Xxxxx
---------------------------------
Name: Xxxxxxxx X. xx Xxxxx
Title: Executive Vice President
ANCHOR HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
(SEAL)
Attest: /s/ Xxxxxxxx X. xx Xxxxx
----------------------------------
Name: Xxxxxxxx X. xx Xxxxx
Title: Executive Vice President
00
XXXXX XXXXXX BANK AND TRUST COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
(SEAL)
Attest: /s/Xxxxxx Xxxxxx
------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
34
LIST OF EXHIBITS
EXHIBIT C Issuer Subordinated Security Agreement
EXHIBIT D List of Mortgages and Deeds of Trust
EXHIBIT E Stock Pledge Agreements
EXHIBIT F Intercreditor Agreement
35
