1
EXHIBIT 4.2
HYDROCHEM INDUSTRIAL SERVICES, INC.
AND
HYDROCHEM INTERNATIONAL, INC.
AS GUARANTOR
$110,000,000
10 3/8% SENIOR SUBORDINATED NOTES DUE AUGUST 1, 2007
_____________
INDENTURE
DATED AS OF AUGUST 1, 1997
_____________
NORWEST BANK, MINNESOTA, N.A.
AS TRUSTEE
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.03 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.04 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.05 Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.07 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.08 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.09 Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.10 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.13 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.14 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.15 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.02 Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.06 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.07 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.08 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.09 Repurchase Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.03 Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.04 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.05 Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.06 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.07 Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.08 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock . . . . . . . . . . . . . . . . . . . 40
Section 4.10 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.11 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries . . . . . . . . . . . . 42
Section 4.12 Limitation on Layering Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.13 Additional Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.14 Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.15 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 4.16 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 5
SUCCESSORS
Section 5.01 Limitations on Merger, Consolidation or Sale of Substantially All Assets . . . . . . . . . . . . 45
Section 5.02 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.07 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.09 Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.11 Preferential Collection of Claims Against the Company . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 57
Section 8.02 Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.03 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8.04 Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions . . 60
Section 8.06 Repayment to the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.07 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 9.05 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 9.06 Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01 Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.02 Execution and Delivery of Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 10.03 Subsidiary Guarantors May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . 67
Section 10.04 Releases Following Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.05 Limitation of Subsidiary Guarantor's Liability . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.06 Application of Certain Terms and Provisions to the Subsidiary Guarantors. . . . . . . . . . . . . 69
Section 10.07 Release of Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10.08 Subordination of Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 11
SUBORDINATION
Section 11.01 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.02 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.03 Default on Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.04 Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.05 When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.06 Notice by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.07 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.08 Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 11.09 Subordination May Not Be Impaired by Company . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 11.10 Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.12 Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.13 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.03 Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.04 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.05 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.06 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.08 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.09 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.11 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 12.12 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 12.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 12.14 Counterpart Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 12.15 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
EXHIBITS
Exhibit A Form of Note
Exhibit B-1 Form of Certificate for Exchange or Registration of
Transfer of Certificated Notes
Exhibit B-2 Form of Certificate for Exchange or Registration of
Transfer From Rule 144A Global Note to Certificated
Note
Exhibit B-3 Form of Certificate for Exchange or Registration of
Transfer From Certificated Note to Rule 144A Global
Note
Exhibit C Form of Supplemental Indenture
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INDENTURE dated as of August 1, 1997, among HydroChem Industrial
Services, Inc., a Delaware corporation (the "Company"), HydroChem
International, Inc., a Delaware corporation, as guarantor, and Norwest Bank,
Minnesota, N.A., a national banking association, as trustee ("Trustee").
Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 10 3/8% Series A Senior
Subordinated Notes due 2007 (the "Series A Notes") and the 10 3/8% Series B
Senior Subordinated Notes due 2007 (the "Series B Notes" and, together with the
Series A Notes, the "Notes") of the Company:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS
"Acquired Debt" means (i) Indebtedness of any Person existing
at the time such Person became a Restricted Subsidiary or is merged with or
into the Company or a Restricted Subsidiary, including, without limitation,
Indebtedness incurred in connection with, or in contemplation of, such other
Person becoming a Restricted Subsidiary or merging with or into the Company or
a Restricted Subsidiary, and (ii) Indebtedness secured by a Lien encumbering
any asset acquired by the Company or any Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that, with respect to Parent and the Company only, beneficial
ownership of 10% or more of the voting securities of Parent or the Company
shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Members" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depositary that are applicable to such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback) other than sales or dispositions of Cash Equivalents and inventory
in the ordinary course of business (provided that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.06 hereof and/or the provisions of Section 5.01 hereof
and not by the provisions of Section 4.07) hereof, and
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(ii) the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any of the Company's Restricted Subsidiaries, in the case
of either clause (i) or (ii), whether in a single transaction or a series of
related transactions (a) that have a fair market value in excess of $2,000,000
or (b) for net proceeds in excess of $2,000,000. Notwithstanding the
foregoing: (i) a transfer of assets by the Company to a Wholly-Owned
Restricted Subsidiary or by a Wholly-Owned Restricted Subsidiary to the Company
or to another Wholly-Owned Restricted Subsidiary, (ii) an issuance of Equity
Interests by a Wholly-Owned Restricted Subsidiary to the Company or to another
Wholly-Owned Restricted Subsidiary, and (iii) a Restricted Payment that is
permitted by Section 4.08 hereof will not be deemed to be Asset Sales.
Notwithstanding the foregoing, the term "Asset Sale" shall not include any
sale, lease, conveyance, transfer or disposition of all or any part of the
assets of its HII's Singapore branch, having a cumulative value not to exceed
$2,500,000, in exchange for any combination of cash, Cash Equivalents, assets
or Equity Interests in a Person having operations in Southeast Asia; provided
that if assets or Equity Interests are received in connection with such
disposition, such assets must be useful in, or the Person whose Equity
Interests are received must be in, the Company's or HII's business or any
business similar or reasonably related thereto.
"Authentication Order" means an Officer's Certificate ordering
the Trustee to authenticate Notes.
"Bankruptcy Law" means Title II, U.S. Code or any similar
federal or state law for the relief of debtors.
"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 discounted present value of the
liability in respect of a capital lease that would at such time be required to
be capitalized on a balance sheet of such Person in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited), and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
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"Cash Equivalents" means (i) United States dollars or foreign
currency that is readily exchangeable into United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than 12 months from the date of acquisition, (iii) certificates of
deposit and Eurodollar time deposits with maturities of 12 months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding 12
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500,000,000 and a Xxxxx Bank
Watch Rating of "B" or better, (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial institution
meeting the qualifications specified in clause (iii) above, and (v) commercial
paper having the highest rating obtainable from Xxxxx'x Investors Service, Inc.
or Standard & Poor's Corporation and in each case maturing within 12 months
after the date of acquisition.
"Certificated Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A-1, that do not include the information
called for by footnotes 1 and 2 thereof.
"Change of Control" means the occurrence of any of the
following events: (i) the sale, lease, transfer, conveyance, barter 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 assets of Parent or
the Company and its Restricted Subsidiaries taken as a whole to any "person"
(as such term is used in Section 13(d)(3) of the Exchange Act) other than the
Principals or their Related Parties, (ii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of
which is that any "person", other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition), directly or indirectly, of more
than 50% of the Voting Stock of Parent or the Company (measured by voting power
rather than number of shares), (iii) the first day on which a majority of the
members of the Board of Directors of Parent or the Company are not Continuing
Directors, or (iv) Parent or the Company consolidates with, or merges with or
into, any Person (other than a consolidation or merger of Parent and the
Company), or any Person consolidates with, or merges with or into, Parent or
the Company, pursuant to a transaction in which any of the outstanding Voting
Stock of Parent or the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction where the
majority of the members of the Board of Directors of such Person are Continuing
Directors.
"Commission" or "SEC" means the Securities and Exchange
Commission.
"Company" means HydroChem Industrial Services, Inc., a
Delaware corporation.
"Consolidated Cash Flow" means, with respect to the Company
for any period, the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period plus (i) an amount equal to any extraordinary
loss, extraordinary provision or provision for restructuring operations plus
any net loss realized in connection with an Asset Sale (to the extent such
losses were deducted in computing such Consolidated Net Income), plus (ii)
provision for taxes based on income
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or profits of the Company and its Restricted Subsidiaries for such period, to
the extent that such provision for taxes was included in computing such
Consolidated Net Income, plus (iii) consolidated interest expense of the
Company and its Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without limitation,
amortization of debt issuance costs and 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), to the extent that any such expense
was deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a
prior period) of the Company and its Restricted Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income minus (v) non-cash
write-ups increasing such Consolidated Net Income for such period, in each
case, on a consolidated basis and determined in accordance with GAAP; provided
that Consolidated Net Income shall exclude the impact of foreign currency
translations. Notwithstanding the foregoing, the provision for taxes on the
income or profits of, and the depreciation and amortization and other non-cash
charges of, a Restricted Subsidiary of the referenced Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
that a corresponding amount would be permitted at the date of determination to
be distributed to the Company by such Restricted Subsidiary either (i) without
prior governmental approval or (ii) with governmental approval that has been
obtained or that could readily and reasonably be obtained, and without direct
or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Net Income" means, with respect to the Company
for any period, the aggregate of the Net Income of the Company and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP and excluding any extraordinary loss that will be incurred
as a result of the application of the net proceeds from the issuance of the
Notes; provided that (i) the Net Income (but excluding, in all events, any
loss) of any Person that is not a Restricted 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 referenced Person
or a Wholly-Owned Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior
governmental approval (unless such governmental approval could be readily and
reasonably 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, and (iv) the cumulative effect of a change in accounting
principles shall be excluded.
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"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 12 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, excluding goodwill and other purchased intangibles, as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company or the Parent who (i) was a
member of such Board of Directors on the Issue Date, (ii) was nominated for
election or elected to such Board of Directors pursuant to the Stockholders
Agreement at any time or from time to time, or (iii) was nominated or elected
by a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.02 or such other address as 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.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, until a successor shall
have been appointed and become such Depositary pursuant to the applicable
provision of this Indenture, and, thereafter, "Depositary" shall mean or
include such successor.
"Designated Senior Debt" means (i) any Indebtedness
outstanding under the New Credit Facility, and (ii) any other Senior Debt
permitted under this Indenture the principal amount of which is $25,000,000 or
more and that has been designated by the Company as "Designated Senior Debt" by
the filing with the Trustee of a Board Resolution giving effect to such
designation.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the Holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature;
provided that Capital Stock issued to employees
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pursuant to agreements providing that the employee may require the Company to
repurchase such Capital Stock in certain circumstances shall not be deemed to
be Disqualified Stock if such agreements provide that the repurchase rights are
subject to the limitations on such repurchases set forth in Section 4.08.
"Dollars" and "$" means lawful money or currency of the United
States of America.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a public or private offering of the
Capital Stock of the Company, Parent or any Subsidiary of the Company or
Parent.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Series B
Notes for Series A Notes.
"Existing Indebtedness" means up to $3,000,000 in aggregate
principal amount of Indebtedness (including outstanding undrawn letters of
credit) of the Company and its Restricted Subsidiaries in existence on the
Issue Date after application of the net proceeds from the Company's sale of the
Notes, until such amounts are repaid.
"Excluded Restricted Subsidiary" means any Wholly-Owned
Restricted Subsidiary principally engaged in a business similar to that of the
Company or any of its Restricted Subsidiaries or any business reasonably
related thereto and domiciled outside the United States of America so long as
the issuance of a Subsidiary Guarantee by such Subsidiary would, as determined
in a resolution of the Board of Directors (based on written advice from an
independent accounting firm of national standing) set forth in an Officer's
Certificate delivered to the Trustee, create a material tax disadvantage.
"Fixed Charges" means, with respect to the Company for any
period, the sum, without duplication, of (i) the consolidated interest expense
of the Company and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of debt issuance costs and
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 the Company and its Restricted
Subsidiaries that was capitalized during such period, and (iii) any interest
expense on Indebtedness of another Person that is Guaranteed by the Company or
one of its Restricted Subsidiaries or secured by a Lien on assets of the
Company or one of its Restricted Subsidiaries (whether or not such Guarantee or
Lien is called upon), and (iv) the product of (a) all dividend payments,
whether or not
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in cash, on any series of preferred stock of the Company or any of its
Restricted Subsidiaries, other than dividend payments on Equity Interests
payable solely in Equity Interests of the Company and dividend payments from
Restricted Subsidiaries to the Company, 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 the Company, expressed
as a decimal, in each case, on a consolidated basis and in accordance with
GAAP.
"Fixed Charge Coverage Ratio" means with respect to the
Company for any period, the ratio of the Consolidated Cash Flow of the Company
for such period to the Fixed Charges of the Company for such period. In the
event that the Company or any of its Restricted Subsidiaries incurs, assumes,
Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues preferred stock subsequent to the commencement of the 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,
as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, for purposes of making the computation referred
to above, (i) acquisitions that have been made by the Company or any of its
Restricted Subsidiaries, including 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 Consolidated Cash Flow for such reference
period shall be calculated without giving effect to clause (iii) of the proviso
set forth in the definition of Consolidated Net Income, and (ii) the
Consolidated Cash Flow 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 will not be obligations of the Company or any of its Restricted
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 Issue Date; provided
that all reports and other financial information provided by the Company to the
Holders, the Trustee and/or the Commission shall be prepared in accordance with
GAAP, as in effect on the date of such report or other financial information.
"Global Note" means the Rule 144A Global Note.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America, or any agency or
instrumentality thereof for the payment of which obligations or guarantee the
full faith and credit of the United States of America is pledged.
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"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, (ii) other agreements
or arrangements designed to protect such Person against fluctuations in
interest rates, or (iii) agreements or arrangements designed to protect such
Person against fluctuations in foreign currency exchange rates.
"HII" means HydroChem International, Inc., a Delaware
corporation.
"Holder" means a Person in whose name a Note is registered.
"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, without double counting, reimbursement agreements in
respect thereof) or bankers' 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 accrued expense or 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.
"Initial Purchaser" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation.
"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 any advances to
customers and any commission, travel, moving, relocation or 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, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Company, the Company shall
be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.08.
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"Issue Date" means August 4, 1997, the date on which the
Series A Notes are originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment or
authorized or obligated by law, regulation or executive order to remain.
"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) (other than with respect to an operating lease).
"Liquidated Damages" means all liquidated damages owing
pursuant to Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to the Company, the net
income or loss of the Company and its Restricted Subsidiaries, 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 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 the Company or any of its Restricted Subsidiaries or the extinguishment of
any Indebtedness of the Company or any of its Restricted 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 Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any 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
travel or relocation expenses incurred as a result thereof, taxes (including
income taxes) paid or payable as a result thereof, or as a result of required
prepayments or repayments of Indebtedness resulting in the permanent reduction
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), amounts required to be applied to repay
Indebtedness secured by a Lien on such asset or assets (other than pursuant to
the New Credit Facility) and any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP.
"New Credit Facility" means that certain Credit Facility
pursuant to which, following the Company's sale of the Notes, the Company
anticipates that it will obtain a revolving or term loan in an aggregate amount
not to exceed $25,000,000.
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"Note Custodian" means the Trustee, as custodian with respect
to the Global Note, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, costs, expenses, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice President
thereof.
"Officer's Certificate" means a certificate signed on behalf
of the Company by an Officer, who must be the principal executive officer,
principal financial officer or principal accounting officer of the Company.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee. Except with respect to any opinion
delivered pursuant to Article 8, the counsel may be an employee of or counsel
to the Company.
"Parent" means HydroChem Holding, Inc., a Delaware
corporation.
"Permitted Investments" means: (a) any Investments in the
Company or in a Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company; (b) any Investments in Cash Equivalents, to the
extent that any such Investment is not made for speculative investment
purposes; (c) any Investments by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of any such Investment (i) such Person
becomes a Restricted Subsidiary (other than an Excluded Restricted Subsidiary)
of the Company, 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 Restricted Subsidiary (other than an Excluded
Restricted Subsidiary) of the Company; (d) any Restricted Investment 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 4.07; (e) any acquisition of
assets in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (f) loans and advances to officers,
directors and employees for business-related travel expenses, moving or
relocation expenses and other similar expenses, in each case incurred in the
ordinary course of business; (g) Hedging Obligations included in the definition
of Permitted Debt; (h) advances to employees not exceeding $500,000 outstanding
at any one time, in the aggregate; (i) Investments, including the acquisition
of assets, Equity Interests or other securities, the payment for which consists
of Equity Interests of the Company (exclusive of Disqualified Stock); and (j)
Investments by the Company or its Restricted Subsidiaries in its Excluded
Restricted Subsidiaries, the aggregate outstanding amount of which does not
exceed 7.5% of the first $500,000,000 of consolidated total assets of the
Company and its Restricted Subsidiaries, plus 5% of such total assets in excess
of $500,000,000.
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"Permitted Junior Securities" means Equity Interests in the
Company or unsecured debt securities that (i) are subordinated to all Senior
Debt (and any debt securities issued in exchange for Senior Debt) on terms at
least as favorable to the Senior Debt as those contained in Article 11 hereof,
(ii) may be guaranteed by the Subsidiary Guarantors on terms at least as
favorable to the Senior Debt as those contained in the Subsidiary Guarantees,
and (iii) have a final maturity and weighted average life to maturity which is
the same as or greater than, the Notes.
"Permitted Liens" means: (i) Liens securing Senior Debt or
Senior Debt of any Restricted Subsidiary that were permitted by the terms
hereof to be incurred, (ii) Liens in favor of the Company or any Restricted
Subsidiary, (iii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any Restricted
Subsidiary of the Company; 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 or any Restricted Subsidiary, (iv) Liens on property existing at the
time of acquisition thereof by the Company or any Restricted Subsidiary of the
Company; provided that such Liens were in existence prior to the contemplation
of such acquisition, (v) 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, (vi) Liens existing
on the Issue Date, (vii) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (viii) of the second paragraph of Section 4.09
covering only the assets acquired with such Indebtedness and accessions,
modifications, products and proceeds thereof, (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) encumbrances and restrictions consisting of zoning
restrictions, easements or other restrictions on the use of real property,
which do not materially impair the use thereof for the purpose intended, and
none of which is violated by existing or proposed structures or land use, and
(x) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary 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 Restricted
Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any Restricted Subsidiary 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 Restricted Subsidiary; provided
that: (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of premiums, prepayments, penalties, and reasonable expenses incurred in
connection therewith), (ii) such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and 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
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extended, refinanced, renewed, replaced, defeased or refunded is subordinated
in right of payment to the Notes, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and is subordinated
in right of payment to, the Notes 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 Restricted
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, limited liability
company, partnership, association, joint stock company, trust or trustee
thereof, estate or executor thereof, unincorporated organization or joint
venture.
"Principals" means Citicorp Venture Capital, Ltd., BT Capital
Partners, Inc., LKCM Venture Partners I Ltd., World Equity Partners, L.P., CCT
Partners II, L.P., HES Management, Inc., Xxxxxx Financial, Inc. and B. Xxx
Xxxxxx, Jr.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Related Party" with respect to any Principal means (i) any
controlling stockholder, 80% (or more) owned Subsidiary, or any spouse or
immediate family member (in the case of an individual) of such Principal, or
(ii) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (i).
"Representative" means (i) the administrative agent under the
New Credit Facility, or (ii) the indenture trustee or other trustee, agent or
representative for any other Senior Debt.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the Corporate Trust Office (or any successor group of
the Trustee) assigned by the Trustee to administer the Indenture in its
corporate trust department.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" means (i) each direct or indirect
Subsidiary of the Company existing on the date of the Indenture, and (ii) any
other direct or indirect Subsidiary of the Company formed, acquired or existing
after the date of the Indenture, in each case which is not designated by the
Board of Directors as an "Unrestricted Subsidiary."
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
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"Rule 144A Global Note" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit
A-1, and that is deposited with and registered in the name of the Depositary,
representing Notes sold in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Senior Debt" means (i) all Obligations (including without
limitation interest accruing after a filing of a petition in bankruptcy whether
or not such interest is an allowable claim in such proceeding) of the Company
under the New Credit Facility, and (ii) any other Indebtedness permitted to be
incurred by the Company under the terms hereof, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a parity
with or subordinated in right of payment to the Notes. Notwithstanding
anything to the contrary in the foregoing, Senior Debt will not include, (w)
any liability for federal, state, local or other taxes owed or owing by the
Company, (x) any Indebtedness of the Company to any of its Subsidiaries or
other Affiliates, (y) any trade payables or instruments evidencing such
liability, or (z) any Indebtedness that is incurred in violation of this
Indenture.
"Senior Debt of the Subsidiary Guarantor" means (i) all
Guarantees by the Subsidiary Guarantor of Obligations (including without
limitation interest accruing after a filing of a petition in bankruptcy whether
or not such interest is an allowable claim in such proceeding) of the Company
under the New Credit Facility and (ii) any Indebtedness permitted to be
incurred by the Subsidiary Guarantor under the terms hereof, unless the
instrument under which such Indebtedness is incurred expressly provides that
such Guarantee is on a parity with or subordinated in right of payment to the
Subsidiary Guarantees. Notwithstanding anything to the contrary in the
foregoing, Senior Debt of the Subsidiary Guarantor will not include (x) any
liability for federal, state, local or other taxes owed by the Company, any of
its Subsidiaries or other Affiliates thereof, (y) any trade payables or
instruments evidencing such liability, or (z) any Indebtedness that is incurred
in violation of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness or as amended on or prior to the date
hereof, and shall not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Stockholders Agreement" means the Stockholders Agreement
dated as of December 15, 1993, and as amended on January 10, 1995, by and among
Parent and all of its stockholders.
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"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 of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantees" means the guarantees executed by the
Subsidiary Guarantors, substantially in the form of the guarantee attached to
Exhibit A hereto.
"Subsidiary Guarantors" means HII and all future direct or
indirect subsidiaries of the Company or any Subsidiary Guarantor that execute a
Subsidiary Guarantee in accordance with the provisions hereof, and their
respective successors and assigns.
"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 Securities" means securities that bear or
are required to bear the legend set forth in Section 2.06 hereof.
"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.
"Unrestricted Subsidiary" means (i) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary in
accordance with Section 4.14 hereof, and (ii) any Subsidiary of an Unrestricted
Subsidiary.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of
the Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness 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 will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares or
any similar de minimis requirements of applicable law) shall at the time be
owned by such Person or by one or more Wholly-Owned Restricted Subsidiaries of
such Person.
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SECTION 1.02 OTHER DEFINITIONS
Defined in
Term Section
---- -------------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . 4.12
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . . 4.07
"Asset Sale Offer Period" . . . . . . . . . . . . . . . . . . . . 4.07
"Asset Sale Offer Purchase Date" . . . . . . . . . . . . . . . . 4.07
"Benefitted Party" . . . . . . . . . . . . . . . . . . . . . . . 10.01
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . . 4.06
"Change Of Control Offer Period" . . . . . . . . . . . . . . . . 4.06
"Change of Control Payment" . . . . . . . . . . . . . . . . . . . 4.06
"Change of Control Purchase Date" . . . . . . . . . . . . . . . . 4.06
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . 8.03
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"DTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . 4.07
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . 8.02
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . 12.07
"Net Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . 4.07
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Payment Blockage Notice" . . . . . . . . . . . . . . . . . . . . 11.03
"Permitted Debt" . . . . . . . . . . . . . . . . . . . . . . . . 4.09
"QIB" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . . . 4.08
"Transfer Restricted Security" . . . . . . . . . . . . . . . . . 2.06
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.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
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"obligor" on the Notes means the Company, each Subsidiary
Guarantor 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.
SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(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; and
(5) provisions apply to successive events and
transactions.
(6) references to sections or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING
The Notes, the Subsidiary Guarantees and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1, which is part
of this Indenture. 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 issued initially in
denominations of $1,000 and integral multiples thereof.
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.
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(a) Rule 144A Global Notes. Notes offered and sold within the
United States to qualified institutional buyers as defined in Rule 144A
("QIBs") in reliance on Rule 144A shall be issued initially in the form of Rule
144A Global Notes, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Depositary or a custodian of the Depositary
at its New York office, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
Rule 144A Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee as hereinafter provided.
(b) Global Notes in General. The Global Note shall represent the
outstanding Notes and shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of the Global Note to reflect the amount of any increase or
decrease in the 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.
Except as set forth in Section 2.06 hereof, the Global Note may be
transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(c) Book-Entry Provisions. The Company shall execute and the
Trustee shall, in accordance with this Section 2.01(d) and Section 2.02,
authenticate and deliver the Global Note that (i) shall be registered in the
name of the Depositary or the nominee of the Depositary and (ii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Agent Members shall have no rights either under this Indenture with
respect to the Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary or under the Global Note, and the
Depositary may be treated by the Company, the Subsidiary Guarantors, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
the Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Subsidiary Guarantors, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in the Global Note.
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SECTION 2.02 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Notes for the Company by manual or
facsimile signature.
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 delivery of an Authentication Order,
authenticate Notes for original issue up to the aggregate principal amount
stated in paragraph 4 of the Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount, 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 authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
Neither the Company nor the Trustee shall have any responsibility for
any defect in the CUSIP number that appears on any Note, check, advice of
payment or redemption notice, and any such document may contain a statement to
the effect that CUSIP numbers have been assigned by an independent service for
convenience of reference and that neither the Company nor the Trustee shall be
liable for any inaccuracy in such numbers.
SECTION 2.03 REGISTRAR AND PAYING AGENT
The Company shall maintain in the Borough of Manhattan, the City of
New York, State of New York, and in such other locations as it shall determine,
(i) an office or agency where Notes may be presented for registration of
transfer or for exchange ("Registrar") and (ii) 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 Note.
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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 Note. The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
with respect to the Certificated 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, interest and Liquidated Damages, if any, on the
Notes, and shall 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 the occurrence of events specified in Section 6.01(ix) or (x) hereof, 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 Note. The transfer and
exchange of the Global Note or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Beneficial interests in the Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the Global Note
in accordance with the transfer restrictions set forth in the legend in
subsection (g) of this Section 2.06.
(b) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized
denominations,
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the Registrar shall register the transfer or make the exchange as requested;
provided that the Certificated Notes presented or surrendered for register of
transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing
with the signature guaranteed; and
(ii) in the case of a Certificated Note that is a Transfer
Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Transfer
Restricted Security is being transferred to the Company or any
of its Subsidiaries, a certification to that effect from such
Holder (in substantially the form of Exhibit B-1 hereto);
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration
in accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B-1 hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act a
certification to that effect from such Holder (in
substantially the form of Exhibit B-1 hereto) and an Opinion
of Counsel from such Holder or the transferee reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act.
(c) Transfer of a Beneficial Interest in the Global Note for a
Certificated Note
(i) Any Person having a beneficial interest in the Global
Note may upon request, subject to the Applicable Procedures, exchange
such beneficial interest for a Certificated Note. Upon receipt by the
Trustee of written instructions or such other form of instructions as
is customary for the Depositary, from the Depositary or its nominee on
behalf of any Person having a beneficial interest in the Global Note,
and, in the case of a Transfer Restricted Security, the following
additional information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification to that effect
from such Person (in substantially the form of Exhibit B-2
hereto);
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(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration
in accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B-2 hereto);
or
(C) if such beneficial interest is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit B-2 hereto) and an Opinion
of Counsel from the transferee or the transferor reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act;
in which case the Trustee or the Note Custodian, at the direction of
the Trustee, shall, in accordance with the standing instructions and
procedures existing between the Depositary and the Note Custodian,
cause the aggregate principal amount of the Global Note to be reduced
accordingly and, following such reduction, the Company shall execute
and the Trustee shall authenticate and deliver to the transferee a
Certificated Note in the appropriate principal amount.
(ii) Certificated Notes issued in exchange for a
beneficial interest in the Global Note pursuant to this Section
2.06(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificated Notes to the
Persons in whose names such Notes are so registered. Following any
such issuance of Certificated Notes, the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the aggregate
principal amount at maturity of the Global Note to reflect the
transfer.
(d) Restrictions on Transfer and Exchange of Global Note.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), the Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(e) Transfer and Exchange of a Certificated Note for a Beneficial
Interest in the Global Note. Holders of Certificated Notes may offer, resell,
pledge or otherwise transfer such Notes only pursuant to an effective
registration statement under the Securities Act, inside the United States to a
QIB in a transaction meeting the requirements of Rule 144A, in a transaction
meeting the requirements of Rule 144 under the Securities Act, or to the
Company or any of its Subsidiaries, in each case in compliance with any
applicable securities laws of any State of the United States or any other
applicable jurisdiction.
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When Certificated Notes are presented by a Holder to the Registrar
with a request (x) to cancel any Certificated Notes in exchange for a
beneficial interest in the Global Note, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met; provided that the Certificated Notes presented or
surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing, which
instructions, if applicable, shall direct the Trustee (A) to cancel
any Certificated Note being exchanged for a beneficial interest in the
Global Note in accordance with Section 2.11 hereof, and (B) to make,
or to direct the Registrar to make, an endorsement on the Global Note
to reflect an increase in the aggregate principal amount of the Notes
represented by the Global Note; and
(ii) in the case of a Certificated Note that is a Transfer
Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Certificated Note is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from
such Holder (in substantially the form of Exhibit B-3 hereto);
(B) if such Certificated Note is being transferred to a
QIB in accordance with Rule 144A, pursuant to Rule 144 under
the Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form of Exhibit
B-3 hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto) and an Opinion
of Counsel from such Holder or the transferee reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act.
(f) Authentication of Certificated Notes in Absence of Depositary.
If at any time:
(i) the Depositary for the Notes notifies the Company
that the Depositary is unwilling or unable to continue as Depositary
for the Global Note and a successor Depositary for the Global Note is
not appointed by the Company within 90 days after delivery of such
notice; or
(ii) the Company delivers to the Trustee an Officer's
Certificate notifying the Trustee that it elects to cause the issuance
of Certificated Notes under this Indenture,
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then the Company shall execute, and the Trustee shall, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, authenticate and
deliver, Certificated Notes in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for the Global Note.
(g) Legends
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing the Global Note and
Certificated Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the
following form (each a "Transfer Restricted Security"):
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX
XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (b) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b), BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by
the Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities
Act:
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(A) in the case of any Transfer Restricted
Security that is a Certificated Note, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Certificated Note that does not bear the legend
set forth in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Security upon receipt of
a certification from the transferring Holder substantially in
the form of Exhibit B-1 hereto; and
(B) in the case of any Transfer Restricted
Security represented by the Global Note, such Transfer
Restricted Security shall not be required to bear the legend
set forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) hereof; provided that with
respect to any request for an exchange of a Transfer
Restricted Security that is represented by the Global Note for
a Certificated Note that does not bear the legend set forth in
(i) above, which request is made in reliance upon Rule 144,
the Holder thereof shall certify in writing to the Registrar
that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of Exhibit B-2
hereto).
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by
the Global Note) in reliance on any exemption from the registration
requirements of the Securities Act (other than exemptions pursuant to
Rule 144A or Rule 144 under the Securities Act) in which the Holder or
the transferee provides an Opinion of Counsel to the Company and the
Registrar in form and substance reasonably acceptable to the Company
and the Registrar (which Opinion of Counsel shall also state that the
transfer restrictions contained in the legend are no longer
applicable):
(A) in the case of any Transfer Restricted
Security that is a Certificated Note, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Certificated Note that does not bear the legend
set forth in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by the Global Note, such Transfer
Restricted Security shall not be required to bear the legend
set forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (c) hereof.
(iv) Notwithstanding the foregoing, upon consummation of
the Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate Series B Notes in exchange for Series A
Notes accepted for exchange in the Exchange Offer, which Series B
Notes shall not bear the legend set forth in (i) above, and the
Registrar shall rescind any restriction on the transfer of such Series
B Notes, in each case unless the Holder of such Series A Notes is
either (A) a broker-dealer, (B) a Person participating in the
distribution of the Series A Notes or (C) a Person who is an affiliate
(as defined in Rule 144) of the Company.
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(h) Cancellation and/or Adjustment of Global Note. At such time
as all beneficial interests in the Global Note have been exchanged for
Certificated Notes, redeemed, repurchased or cancelled, the 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 the Global Note is exchanged for an interest in Certificated Notes,
redeemed, repurchased or cancelled, the principal amount of Notes represented
by the Global Note shall be reduced accordingly and an endorsement shall be
made on the Global Note, by the Trustee or the Note Custodian, at the direction
of the Trustee, to reflect such reduction.
(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
Certificated Notes and the Global Note at the Registrar's request.
(ii) No service charge shall be made to a Holder 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, 3.07, 4.06, 4.07 and
9.05 hereof).
(iii) The Certificated Notes and the Global Note issued
upon any registration of transfer or exchange of Certificated Notes or
the Global Note shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Certificated Notes or the Global Note 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 Notes during a period beginning at the opening of
business on a Business Day fifteen (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; or
(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.
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(vi) 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 and Liquidated Damages, if any, on such
Notes, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and
the Global Note in accordance with the provisions of Section 2.02
hereof.
The Registrar may conclusively rely on information set forth in a
certificate substantially in the form of Exhibit X-0, X-0 or B-3 hereto, and
other certificates and opinions received pursuant to this Section 2.06 and, in
the absence of receipt of such a certificate or opinion, shall not be deemed to
have knowledge of a transfer of an interest in the Global Note absent actual
knowledge of such transfer.
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 the written
order of the Company signed by two Officers of the Company, 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 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 the
Holder 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.
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 the 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.
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If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay the principal amount of any Notes due and 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, any Subsidiary Guarantor or any Affiliate of the Company or any
Subsidiary Guarantor, 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 Certificated Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by two Officers of the Company. 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 Certificated 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, which the Company may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly cancelled by the Trustee. 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 return cancelled
Certificated Notes or the cancelled Global Note to the Company (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 redeemed or paid
or that have been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
If the Company or any Subsidiary Guarantor 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
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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 ten (10) days prior to the related payment date for such
defaulted interest. At least fifteen (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.
SECTION 2.13 RECORD DATE
The record date for purposes of determining the identity of Holders of
the Notes or consent to any action by vote or consent authorized or permitted
under this Indenture shall be determined as provided for in TIA Section 316(c).
SECTION 2.14 COMPUTATION OF INTEREST
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 2.15 CUSIP NUMBER
The Company in issuing the Notes may use a "CUSIP" number, and if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchanges convenient to Holder; provided that any such notice may state that no
representation is made as the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
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 but not more than 90 days before a redemption date (unless a
shorter notice shall be satisfactory to the Trustee), an Officer's Certificate
setting forth the Section of this Indenture pursuant to which the redemption
shall occur, the redemption date, the principal amount of Notes to be redeemed
and the redemption price.
If the Company is required to make an offer to purchase Notes pursuant
to Section 4.06 or 4.07 hereof, it shall furnish to the Trustee, at least 45
days before the scheduled purchase date, an Officer's Certificate setting forth
the section of the Indenture pursuant to which the offer to purchase shall
occur, the terms of the offer, the principal amount of Notes to be purchased,
the purchase price, the purchase date and a statement to the effect that the
Company or one of its Restricted Subsidiaries has affected an Asset Sale and
there are Excess Proceeds aggregating more than $5,000,000 or a Change of
Control has occurred, as applicable.
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SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed, 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 by such other method as the Trustee shall deem fair and
appropriate. In the event of partial redemption by lot, the Trustee shall make
the selection not less than 30 nor more than 60 days prior to the redemption
date from the outstanding Notes not previously called for redemption. Notices
of redemption may not be conditional.
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 portion of the principal amount thereof to be redeemed. Notes
and portions of them selected to be redeemed shall be in principal amounts of
$1,000 or whole 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 a 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.
SECTION 3.03 NOTICE OF REDEMPTION
At least 30 days but not more than 90 days before a redemption date,
the Company shall mail, 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:
(1) the redemption date;
(2) the redemption price and the accrued and unpaid
interest and Liquidated Damages, if any, per $1,000 of principal;
(3) 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 will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) 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;
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(7) the paragraph of the Notes pursuant to which the
Notes called for redemption are being redeemed; and
(8) 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.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed, Notes called for redemption
become irrevocably due and payable on the redemption date at the price set
forth in the Note.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
On or before the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of and accrued interest and Liquidated Damages, if any, on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall 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 and Liquidated Damages, if any, on all Notes to be redeemed.
Interest on the Notes to be redeemed will cease to accrue on the
applicable redemption date, whether or not such Notes are presented for
payment, if the Company makes the redemption payment. 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 will be
paid on the unpaid principal, from the redemption or purchase 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 8.06 shall apply to any Notes not redeemed within two
years from the redemption date. If a Note is redeemed or purchased on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest and Liquidated Damages, if any, shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company shall
issue and 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.
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SECTION 3.07 OPTIONAL REDEMPTION
Except as set forth below, the Notes shall not be redeemable at the
Company's option prior to August 1, 2002. Thereafter, the Notes shall be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 90 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Liquidated Damages, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on August
1 of the years indicated below:
YEAR PERCENTAGE
2002 . . . . . . . . . . . . . . . . . . . . . . . . 105.188%
2003 . . . . . . . . . . . . . . . . . . . . . . . . 103.458%
2004 . . . . . . . . . . . . . . . . . . . . . . . . 101.729%
2005 and thereafter . . . . . . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, at any time prior to August 4, 2000,
the Company may on any one or more occasions redeem up to an aggregate of 35%
of the original aggregate principal amount of Notes at a redemption price of
109.375% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date, with the net proceeds of
one or more Equity Offerings; provided that at least 65% of the original
aggregate principal amount of Notes remains outstanding immediately after such
redemption; and provided that such redemption shall occur within 90 days of the
date of the closing of any such Equity Offering.
Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION
The Company shall have no mandatory redemption or sinking fund
obligations with respect to the Notes, except as may be set forth in Sections
4.06 and 4.07 hereof.
SECTION 3.09 REPURCHASE OFFER
In the event that the Company shall be required to commence an offer
to all Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section
4.07 hereof, an "Excess Proceeds Offer," or pursuant to Section 4.06 hereof, a
"Change of Control Offer," the Company shall follow the procedures specified
below.
A Repurchase Offer shall commence no later than ten Business Days
after a Change of Control (unless the Company is not required to make such
offer pursuant to Section 4.06(d) hereof) or an Excess Proceeds Offer
Triggering Event (as defined below), as the case may be, and remain open for a
period of twenty Business Days following its commencement and no longer, except
to the extent that a longer period is required by applicable law (the "Offering
Period"). No later than five Business Days after the termination of the Offer
Period (the "Purchase Date"), the Company
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shall purchase the principal amount of Notes required to be purchased pursuant
to Section 4.07 hereof, in the case of an Excess Proceeds Offer, or Section
4.06 hereof, in the case of a change of Control Offer (the "Offer Amount") or,
if less than the Offer Amount has been tendered, all Notes tendered in response
to the Repurchase Offer. Payment for any Notes so purchased shall be made in
the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, 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 or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase 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 such Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall describe the transaction
or transactions that constitute the Change of Control or Excess Proceeds Offer
Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to
this Section 3.09 and Section 4.07 or 4.06 hereof, as the case may be,
and the length of time the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the 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 Repurchase Offer
shall cease to accrue interest and Liquidated Damages, if any, after
the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to a Repurchase Offer, shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note, duly completed, or transfer by book-entry
transfer, to the Company, the Depositary, or the Paying Agent at the
address specified in the notice not later than the close of business
on the last day of the Offering Period;
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(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 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 Holder is
withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the 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 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 10:00 a.m. (New York City time) on each Purchase Date,
the Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for payment
in accordance with the terms of this Section 3.09. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata
basis to the extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has
been tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
Depositary, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officer's Certificate stating that such Notes
or portions thereof were accepted for payment by the Company in accordance with
the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, shall mail or deliver to each tendering Holder on
the Purchase Date an amount equal to the purchase price of the Notes tendered
by such Holder and accepted by the Company for purchase, plus any accrued and
unpaid interest and Liquidated Damages, if any, thereon, and the Company shall
promptly issue a new Note, and the Trustee, shall authenticate and mail or
deliver such new Note, to such Holder equal to the principal amount to any
unpurchased portion of such Holder's Notes surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce in a newspaper of general
circulation or in a press release provided to a nationally recognized financial
wire service the results of the Repurchase Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
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ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest and Liquidated Damages, if any, on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest and Liquidated Damages, if any, shall be considered paid on the date
due if the Paying Agent (other than the Company or a Subsidiary), holds as of
10:00 a.m. (New York City time) money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal,
premium, if any, and interest and Liquidated Damages, if any, then due. Such
Paying Agent shall return to the Company, no later than five Business Days
following the due date for payment, any money (including accrued interest, if
any) that exceeds such amount of principal, premium, if any, and interest and
Liquidated Damages, if any, required for payment on the Notes.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the applicable
interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
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
Registrar) where Notes may be surrendered for registration of transfer or
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
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.
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SECTION 4.03 COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officer's Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officer with a view to
determining whether he or she has kept, observed, performed and fulfilled in
all respects its obligations under this Indenture and further stating, as to
such Officer signing such certificate, that, to the best of his or her
knowledge, each entity 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 hereof
or thereof (or, if such Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he may have
knowledge and what action each is taking or proposes to take with respect
thereto).
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event
of Default or an Officer's Certificate specifying such Default, Event of
Default or event of default and what action the Company is taking or proposes
to take with respect thereto.
SECTION 4.04 TAXES
The Company shall, and shall cause each of its Restricted Subsidiaries
to, pay prior to delinquency all material taxes, assessments, and governmental
levies except as contested in good faith and by appropriate proceedings.
SECTION 4.05 STAY, EXTENSION AND USURY LAWS
The Company and each Subsidiary Guarantor 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, which may affect the covenants or the performance of this Indenture; and
the Company and each Subsidiary Guarantor (to the extent 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.
SECTION 4.06 CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require the Company 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 and Liquidated Damages, if any, 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 on the date specified in such notice, which date
shall be
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no earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"), 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
from the time of mailing until the Business Day preceding the Change of Control
Payment Date.
(b) On the Change of Control Payment 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 for cancellation the Notes so accepted together with an
Officer's 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 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 will 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.
(c) In the event a Change of Control occurs at a time when the
Company is prohibited from purchasing Notes under the terms of any Senior Debt,
then prior to the mailing of the notice to Holders pursuant to Section 4.06(a),
but in any event within 30 days following any Change of Control, the Company
shall obtain the requisite consents, if any, under all agreements governing
such Senior Debt to the purchase of Notes pursuant to a Change of Control Offer
or repay any Senior Debt prohibiting such purchase of Notes.
(d) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company, including any requirement to repay in full any
Senior Debt or obtain the consents of any of the Company's lenders to such
Change of Control Offer, and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
(e) The Change of Control provisions described above will be
applicable whether or not any other provisions of this Indenture are
applicable.
SECTION 4.07 ASSET SALES
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time
of such Asset Sale at least equal to the fair market value, as determined in
good faith by the Company (evidenced by a resolution of the Board of Directors
set
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forth in an Officer's Certificate delivered to the Trustee), of the assets or
Equity Interests issued or sold or otherwise disposed of, and (ii) at least 75%
of the consideration received therefor by the Company or such Restricted
Subsidiary is in the form of (a) cash or Cash Equivalents, or (b) property or
assets useful in the Company's or such Restricted Subsidiary's business or any
business similar or reasonably related thereto, or (c) stock if the acquired
entity becomes a Restricted Subsidiary and is engaged in a business similar or
reasonably related to that of the Company or any Restricted Subsidiary;
provided that the amount of (x) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet) of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any guarantee thereof) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability, and (y) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash or Cash
Equivalents (to the extent of the cash received) within 180 days following the
closing of the Asset Sale, shall be deemed to be cash for purposes of this
provision.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds, at its option, (a) to repay
permanently Senior Debt or Senior Debt of the Restricted Subsidiaries, or (b)
to the acquisition of an interest in another business, the making of a capital
expenditure or the acquisition of other long-term assets, in each case, in the
same business as the Company or any Restricted Subsidiary or any business
similar or reasonably related thereto. Pending the final application of any
such Net Proceeds, the Company or the Restricted Subsidiaries, as the case may
be, may temporarily reduce outstanding 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 will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $5,000,000, the Company shall 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 and Liquidated Damages, if any, to the date of purchase, in accordance
with the procedures set forth in Section 3.09 hereof. If the aggregate
principal amount of Notes tendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. If the aggregate principal 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 offer to purchase, the amount of Excess Proceeds shall be reset at zero.
SECTION 4.08 RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's or any of
its Restricted Subsidiaries' Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation involving the
Company) or to the direct or indirect holders of the Company's or any of its
Restricted Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests
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(other than Disqualified Stock) of the Company), (ii) purchase, redeem or
otherwise acquire or retire for value (including without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company (other
than any such Equity Interests owned by the Company or any Wholly-Owned
Restricted Subsidiary of the Company), (iii) make any payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the Notes, except a payment of
interest or principal at Stated Maturity, 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; and
(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 4.09; and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Issue Date (excluding Restricted
Payments permitted by clauses (ii), (iii) and (iv) of the next
succeeding paragraph), is less than the sum of (i) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the Issue Date 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 (ii) 100% of the aggregate net cash proceeds
received by the Company since the Issue Date from (A) contributions to
the Company's capital, and (B) the issue or sale of Equity Interests
of the Company (other than Disqualified Stock) or of Disqualified
Stock or debt securities of the Company that have been converted into
such Equity Interests (other than Equity Interests (or Disqualified
Stock or convertible debt securities) sold to a Restricted Subsidiary
of the Company and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified Stock), plus
(iii) 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 cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if any) and
(B) the initial amount of such Restricted Investment, plus (iv) the
aggregate amount of $5,000,000.
The foregoing provisions shall not prohibit (i) the payment of the
dividend of approximately $8,500,000 to Parent with a portion of the net
proceeds from the Company's sale of the Notes, (ii) 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, (iii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness
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or Equity Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, other Equity Interests of the Company (other
than any Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c) (ii) of the
preceding paragraph, (iv) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness, (v) the payment of any
dividend by a Restricted Subsidiary of the Company to the holders of its common
Equity Interests on a pro rata basis, (vi) the repurchase of any Indebtedness
subordinated or pari passu in right of payment to the Notes at a purchase price
not greater than 101% of the principal amount of such Indebtedness in the event
of a Change of Control in accordance with provisions of the "Change of Control"
covenant; provided that prior to or contemporaneously with such repurchase the
Company has made the Change of Control Offer as provided in such covenant with
respect to the Notes and has repurchased all Notes validly tendered for payment
and not withdrawn in connection with such Change of Control Offer, (vii) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company
held by any current or former employee or director of the Company (or any of
its Restricted Subsidiaries) pursuant to any management equity subscription
agreement or stock option agreement; provided that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $1,000,000 in any twelve- month period or $5,000,000 in total and no
Default or Event of Default shall have occurred and be continuing immediately
after such transaction, (viii) any loans, advances, distributions from the
Company to Parent or any Restricted Subsidiary, or any loans, advances,
distributions or payments by a Restricted Subsidiary to Parent, the Company or
to another Restricted Subsidiary, in each case pursuant to intercompany
Indebtedness, intercompany management agreements and other intercompany
agreements and obligations entered into in the ordinary course of business,
including reasonable advisory and service fees and any indemnity obligations,
(ix) if Parent files tax returns which include the Company, payments to Parent
under any customary and reasonable tax sharing arrangement, and (x) payments to
Parent in respect of customary and reasonable accounting, legal or other
professional or administrative expenses or reimbursements for franchise or
similar taxes and governmental charges incurred which relate to the business,
operations or finances of the Company or Restricted Subsidiary and in respect
of fees, offering costs and related expenses associated with any future
registration statements filed with the Commission and subsequent ongoing public
reporting requirements.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined by
the Board of Directors whose resolution with respect thereto shall be delivered
to the Trustee. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officer's Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.08 were computed.
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SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Debt) and that the Company shall not issue any Disqualified Stock and
shall not permit any of its Restricted Subsidiaries to issue any shares of
Disqualified Stock; provided that the Company may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock and may permit any
Restricted Subsidiary to incur any Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock if 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.
The provisions of the first paragraph of this Section 4.09 shall not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of
credit (with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its
Subsidiaries thereunder) under the New Credit Facility (or pursuant to
any successor facility, which successor facility need not constitute
Permitted Refinancing Indebtedness), along with any Guarantee thereof
by any of the Restricted Subsidiaries, up to an amount at any time
incurred equal to the greater of (a) $25,000,000, less the aggregate
amount of all Net Proceeds of Asset Sales applied to permanently repay
any such Indebtedness or, in the case of any such revolving
Indebtedness, permanently reduce commitments therefor pursuant to
Section 4.07 above or (b) the sum of 85% of the Company's consolidated
accounts receivable and 60% of its consolidated inventory, in each
case, from time to time, as determined in accordance with GAAP;
(ii) the incurrence by the Company or any of its Restricted
Subsidiaries 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 the terms of this Indenture to
be outstanding or that are incurred by the Company or any of its
Restricted Subsidiaries to protect against currency exchange rate risk
in the conduct of its operations;
(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company of Indebtedness
represented by the Notes and the incurrence by the Subsidiary
Guarantors of Indebtedness represented by the Subsidiary Guarantees;
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(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence of Indebtedness in respect of
performance bonds or surety or appeal bonds in the ordinary course of
business;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Wholly-Owned Restricted Subsidiaries; provided that (a)
if the Company is the obligor on such Indebtedness, such Indebtedness
is expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes and if a Subsidiary Guarantor is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations
with respect to the Subsidiary Guarantees, and (b)(1) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a
Wholly-Owned Restricted Subsidiary and (B) any sale or other transfer
of any such Indebtedness to a Person that is not either the Company or
a Wholly-Owned Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(viii) the incurrence by the Company or any of its
Restricted Subsidiaries 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 improvements of property
used in the business of the Company or such Restricted Subsidiaries,
in an aggregate principal amount not to exceed $7,500,000 at any time
outstanding;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any other additional Indebtedness incurred
pursuant to this clause (ix), not to exceed $10,000,000; and
(x) the incurrence of Indebtedness by any Restricted
Subsidiary pursuant to a Guarantee of Indebtedness permitted to be
incurred.
For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (x) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify such item of Indebtedness
in any manner that complies with this Section 4.09 and such item of
Indebtedness shall be treated as having been incurred pursuant to only one of
such clauses or pursuant to the first paragraph hereof. Any Indebtedness that
may be incurred pursuant to this covenant may be incurred under the New Credit
Facility. Accrual of interest, the accretion of accreted value and the payment
of interest in the form
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of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.09.
SECTION 4.10 LIENS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (except Permitted Liens) on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, unless the Notes are equally and ratably secured with
the obligation or liability secured by such Lien until such time as such
obligations are no longer secured by a Lien.
SECTION 4.11 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES
The Company shall not, and shall not permit any of its Restricted
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
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock,
or (2) with respect to any other interest or participation in, or measured by,
its profits, or (b) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries, or (iii) transfer any of its properties or assets
to the Company or any of its Restricted 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 Facility, and
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement, or refinancings are no more restrictive in the
aggregate with respect to such dividend and other payment restrictions than
those contained in the New Credit Facility (or any successor facility thereof),
(c) this Indenture, the Notes and the Subsidiary Guarantees, (d) applicable
law, (e) any instrument regarding the sale, lease or purchase of any asset or
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such 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, in the case of Indebtedness, such Indebtedness was permitted by the terms
of this Indenture to be incurred, (f) by reason of customary non-assignment
provisions in licenses or leases entered into in the ordinary course of
business and consistent with past practices, (g) mortgages or other purchase
money obligations or Capital Lease 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) contracts for the sale of
assets, including restrictions with respect to a Restricted Subsidiary under an
agreement for the sale or disposition of all the stock or assets of such
Restricted Subsidiary, or (i) Permitted Refinancing Indebtedness; provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive in the aggregate than those
contained in the agreements governing the Indebtedness being refinanced.
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SECTION 4.12 LIMITATION ON LAYERING DEBT
Notwithstanding the provisions of Section 4.09 hereof, the Company
shall not incur, create, issue, assume, guarantee or otherwise become liable
for any Indebtedness that is subordinate or junior in right of payment to any
Senior Debt and senior in any respect in right of payment to the Notes. In
addition, the Subsidiary Guarantors shall not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is subordinate
or junior in right of payment to any Senior Debt of the Subsidiary Guarantor
and senior in any respect in right of payment to its Subsidiary Guarantee.
SECTION 4.13 ADDITIONAL SUBSIDIARY GUARANTEES
If any entity (other than an Excluded Restricted Subsidiary) shall
become a Restricted Subsidiary after the Issue Date, then such Restricted
Subsidiary shall execute and deliver to the Trustee a supplemental indenture in
form and substance substantially similar to Exhibit C hereto pursuant to which
such Restricted Subsidiary shall unconditionally Guarantee all of the Company's
obligations under the Notes and deliver an Opinion of Counsel reasonably
satisfactory to the Trustee that such supplemental indenture has been duly
executed and delivered by such Restricted Subsidiary.
SECTION 4.14 UNRESTRICTED SUBSIDIARIES
The Board of Directors may designate any Subsidiary (including any
Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary so long as: (i) neither the Company nor any
Restricted Subsidiary is directly or indirectly liable for any Indebtedness of
such Subsidiary, (ii) no default with respect to any Indebtedness of such
Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of
any other Indebtedness of the Company or any Restricted Subsidiary to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity, (iii) any Investment in
such Subsidiary deemed to be made as a result of designating such Subsidiary an
Unrestricted Subsidiary will not violate the provisions of Section 4.08, (iv)
neither the Company nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than (A) those that might be obtained at the time
from Persons who are not Affiliates of the Company or (B) administrative, tax
sharing and other ordinary course contracts, agreements, arrangements and
understandings or obligations entered into in the ordinary course of business,
and (v) neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other Equity Interests in
such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results other than as permitted by Section 4.08. Notwithstanding the
foregoing, the Company may not designate as an Unrestricted Subsidiary any
Subsidiary which, on the Issue Date, is a Significant Subsidiary, and may not
sell, transfer or otherwise dispose of any properties or assets of any such
Significant Subsidiary to an Unrestricted Subsidiary, other than in the
ordinary course of business. Any Investment made by the Company or any
Restricted Subsidiary which is designated from a Restricted Subsidiary to an
Unrestricted Subsidiary shall thereafter be considered as having been a
Restricted Payment (to the extent not
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previously included as a Restricted Payment) made on the day such Subsidiary is
designated an Unrestricted Subsidiary in the amount of the greater of (i) the
fair market value (as determined by the Board of Directors of the Company in
good faith) of the Equity Interests of such Subsidiary held by the Company and
its Restricted Subsidiaries on such date, and (ii) the amount of the
Investments determined in accordance with GAAP made by the Company and any of
its Restricted Subsidiaries in such Subsidiary.
The Board of Directors may designate any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be
permitted if (i) such Indebtedness is permitted by Section 4.09, and (ii) no
Default or Event of Default would occur as a result of such designation.
Any such designation by the Board of Directors pursuant to this
Section 4.14 shall be evidenced to the Trustee by the filing of a Board
Resolution with the Trustee giving effect to such designation.
SECTION 4.15 TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(i) such Affiliate Transaction is on terms that are at least as favorable as
those that could reasonably be expected to be obtained by the Company or the
relevant Restricted Subsidiary in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person, and (ii) the Company
delivers to the Trustee (a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess
of $1,000,000, a resolution of the Board of Directors set forth in an Officer's
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 or series of related Affiliate Transactions involving
aggregate consideration in excess of $5,000,000, an opinion as to the fairness
to the Company of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing; provided that the following shall not be deemed to be Affiliate
Transactions: (u) any employment agreement entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted Subsidiary,
(v) transactions between or among the Company and/or its Restricted
Subsidiaries, (w) Restricted Payments that are permitted by the provisions of
Section 4.08 hereof, (x) reasonable and customary fees paid by the Company or
such Restricted Subsidiary to members of their respective Boards of Directors,
(y) transactions or agreements existing as of the Issue Date, and (z)
reasonable and customary grants of stock, stock options or other Equity
Interests to employees and directors of the Company in accordance with duly
adopted stock grant, stock option and similar plans.
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SECTION 4.16 REPORTS
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company shall furnish to
the Holders of Notes (i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission 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" and, with respect to the annual information only, a report thereon
by the Company's certified independent auditors and (ii) all current reports
that would be required to be filed with the Commission 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 Commission, the Company shall file
a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors
upon request. In addition, the Company has agreed that, for so long as any
Notes remain outstanding, it shall furnish to the Holders and to prospective
purchasers designated by such Holders, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The financial information to be distributed to Holders of Notes shall
be filed with the Trustee and mailed promptly following filing with the
Commission or such date as such information should have been required to have
been filed with the Commission to the Holders at their addresses appearing in
the register of the Notes maintained by the Registrar.
The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information and, if required by
the Company, the Trustee will deliver such reports to the Holders under this
Section 4.03.
ARTICLE 5
SUCCESSORS
SECTION 5.01 LIMITATIONS ON MERGER, CONSOLIDATION OR SALE OF SUBSTANTIALLY
ALL ASSETS
The Company shall not 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 its
properties or assets in one or more related transactions, to another
corporation, Person or entity 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 is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the entity or
Person formed by or surviving any such consolidation or merger (if other than
the Company) or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Notes and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee; (iii)
immediately after such transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or into a Wholly-Owned
Restricted Subsidiary of the Company, the Company or the entity or Person
formed by or surviving
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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 (A) will 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) will, 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 4.09 above.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officer's Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture if applicable comply with this Indenture. The Trustee
shall be entitled to conclusively rely upon such Officer's Certificate and
Opinion of Counsel.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale, 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, that the Company shall not be released
or discharged from the obligation to pay the principal of or interest on the
Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the Notes (whether
or not prohibited by Article 11 hereof);
(ii) default in payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by Article 11
hereof);
(iii) failure by the Company to comply with the provisions
of Section 4.06, 4.07 or 5.01;
(iv) failure by the Company for 30 days after written
notice from the Trustee or the Holders of at least 30% in principal
amount of the then outstanding Notes to comply with Sections 4.08 and
4.09 hereof;
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(v) failure by the Company for 60 days after written
notice from the Trustee or Holders of 30% in principal amount of the
then outstanding Notes to comply with any of its other agreements in
this Indenture or the Notes;
(vi) 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 acing on behalf of
any Subsidiary Guarantor, shall deny or disaffirm its obligations
under its Subsidiary Guarantee;
(vii) 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 Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted 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 when
due at final stated maturity (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 such Indebtedness
under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates $7,500,000 or more;
(viii) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of
$7,500,000, which judgments are not paid, discharged or stayed for a
period of 60 days;
(ix) the Company or any of its Significant 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 unable to pay its debts as the same become due; or
(x) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (a) is for relief against the
Company or any of its Significant Subsidiaries in an involuntary case,
(b) appoints a Custodian of the Company or any of its Significant
Subsidiaries or for all or substantially all of their property, or (c)
orders the liquidation of the Company or any of its Significant
Subsidiaries, and the order or decree remains unstayed and in effect
for 60 days.
To the extent that the last day of the period referred to in clause
(i), (iii), (iv) or (v) of the immediately preceding paragraph is not a
Business Day, then the first Business Day following such day shall be deemed to
be the last day of the period referred to in such clauses. Any "day" will be
deemed to end as of 11:59 p.m., New York City time.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
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SECTION 6.02 ACCELERATION
If any Event of Default (other than an Event of Default with respect
to the Company or a Significant Subsidiary specified in clauses (ix) or (x) of
Section 6.01 hereof) occurs and is continuing, the Trustee or the Holders of at
least 30% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a notice of
acceleration (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the New Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration under the New Credit Facility or five
Business Days after receipt by the Company and the Representative under the New
Credit Facility of such Acceleration Notice but only if such Event of Default
is then continuing. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, with respect
to the Company, any Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable without declaration or other
action or notice. Holders of the Notes may not enforce this Indenture or the
Notes except as provided herein. 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. In the event of a declaration
of acceleration of the Notes because an Event of Default has occurred and is
continuing as a result of the acceleration of any Indebtedness described in
Section 6.01(vii), the declaration of acceleration of the Notes shall be
automatically annulled if the holders of any Indebtedness described in Section
6.01(vii) have rescinded the declaration of acceleration in respect of such
Indebtedness within thirty (30) days of the date of such declaration and if (i)
the annulment of the acceleration of the Notes would not conflict with any
judgment or decree of a court of competent jurisdiction, and (ii) all existing
Events of Default, except nonpayment of principal or interest or Liquidated
Damages on the Notes that became due solely because of the acceleration of the
Notes, have been cured or waived. 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 or interest) if it
determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law upon the acceleration of the
Notes. If an Event of Default occurs prior to August 1, 2002, by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding the prohibition on redemption of the
Notes prior to August 1, 2002, then the premium specified Section 3.07 hereof
shall also become immediately due and payable to the extent permitted by law
upon the acceleration of the Notes.
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SECTION 6.03 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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 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
(1) Holders of at least a majority in aggregate principal amount
of the Notes then outstanding (including consents obtained with a purchase or
tender or exchange offer for Notes) 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 this Indenture, except a continuing Default or Event
of Default in the payment of interest or Liquidated Damages, if any, on, or the
principal of, the Notes. 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.
(2) The Trustee may, without the consent of any Holders of the
Notes, waive any Event of Default that relates to untimely or incomplete
reports or information if the legal rights of the Holders would not be
materially adversely affected thereby and may waive any other defaults the
effect of which would not materially adversely affect the rights of the Holders
under this Indenture.
SECTION 6.05 CONTROL BY MAJORITY
Holders of at least a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability. The Trustee may take any other action which is
proper which is not inconsistent with any such direction.
SECTION 6.06 LIMITATION ON SUITS
A Holder may pursue a remedy with respect to this Indenture, the
Subsidiary Guarantee or the Notes only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
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(2) the Holders of at least 30% in principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(4) 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
(5) during such 60-day period the Holders of a majority
in aggregate principal amount of the then outstanding Notes do not
give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 RIGHTS OF HOLDERS 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, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or adversely affected without the
consent of the Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(i) or (ii) 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 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.
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 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
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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
which the Holders of the Notes 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 thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, 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 for amounts due and unpaid on the Notes for
principal, premium, if any, interest and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, interest, and Liquidated
Damages, if any, respectively;
Third: without duplication, to Holders of Notes for any other
Obligations owing to the Holders of Notes under the Notes or this Indenture;
and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders 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 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
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(1) 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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
their own affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(b) 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. In the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematic calculations or other facts stated therein).
(3) 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:
(a) This paragraph does not limit the effect of paragraph
(2) of this Section.
(b) 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.
(c) 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.
(4) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
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(6) 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.
(7) All indemnifications and releases from liability granted
herein to the Trustee shall extend to the directors, officers, employees and
agents of the Trustee and to the Paying Agent and Registrar.
SECTION 7.02 RIGHTS OF TRUSTEE
(1) 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, 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.
(2) Before the Trustee acts or refrains from acting, it may
require an Officer's 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 Officer's Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its selection and the 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
in good faith and in reliance thereon.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(6) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty unless so specified herein.
(7) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
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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 an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11. Subject to the provisions of Section 310(b) of the TIA, the
Trustee shall be permitted to engage in transactions with the Company and its
Subsidiaries other than those contemplated by this Indenture.
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 written direction under any provision
hereof. The Trustee 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
The Trustee shall not be deemed to have notice of a Default or an
Event of Default unless (i) the Trustee has received written notice thereof
from the Company or any Holder or (ii) a Responsible Officer of the Trustee
shall have actual knowledge thereof. Except as otherwise expressly provided
herein, the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements herein, or of any of the documents executed in connection with the
Notes, or as to the existence of a Default or Event of Default hereunder.
Subject to Section 6.04(2), if a Default or Event of Default occurs
and is continuing and if it is known to a Responsible Officer of the Trustee,
the Trustee shall mail to Holders a notice of the Default or Event of Default
within 90 days after it obtains knowledge of the existence of such Event of
Default. Except in the case of a Default or Event of Default in payment of
principal, premium 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 Holders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS
Within 60 days after each December 31 beginning with the December 31
following the date of this Indenture, the Trustee shall mail to Holders 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 comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
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Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each stock exchange, if any, on which the Company has informed the
Trustee that Notes are listed. 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, as the Company and the Trustee shall from time to time agree, for
its acceptance of this Indenture and services hereunder. 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 or any predecessor Trustee and
their agents, employees, officers and directors against any and all losses,
liabilities, expenses or taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. 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 Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or bad
faith.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
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.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(ix) or (x) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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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 7.08.
The Trustee may resign 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. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) 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;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) 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.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the 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 who has been a
Holder for at least six months fails to comply with Section 7.10, such Holder
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. 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. 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 which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise
corporate trustee power, shall be subject to supervision or examination by
Federal or state authority and shall have (or in the case of a corporation
included in a bank holding company system, the related bank holding company
shall have) a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and 310(a)(5). The Trustee is subject
to TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE 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.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company and the Subsidiary Guarantors may, at the option of their
respective Board of Directors evidenced by a resolution set forth in an
Officer's Certificate, at any time, with respect to the Notes and the
Subsidiary Guarantees, elect to have either Section 8.02 or 8.03 be applied to
all outstanding Notes upon compliance with the conditions set forth below in
this Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.02 and subject to the satisfaction of the
conditions contained in Section 8.04 hereof, the Company and all Subsidiary
Guarantors shall be deemed to have been discharged from their respective
obligations with respect to all outstanding Notes and the Subsidiary Guarantee
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that (i) the
Company and each Subsidiary Guarantor shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes and
Subsidiary Guarantee, , which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all their
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respective other obligations under such Notes, the Subsidiary Guarantees, and
this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), and (ii) the
Subsidiary Guarantors shall each be released from its Subsidiary Guarantee,
except for the following 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, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest and Liquidated Damages, if any, on such Notes when such
payments are due, (b) the Company's obligations with respect to such Notes
under Sections 2.03, 2.05, 2.06, 2.07, 2.10 and 4.02, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith, and (d) this Article Eight. Subject to
compliance with this Article Eight, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 with respect to the Notes.
SECTION 8.03 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.03 and subject to satisfaction of the conditions
contained in Section 8.04 hereof, the Company and each Subsidiary Guarantor
shall be released from its obligations under the covenants contained in
Sections 4.03, 4.04, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15
and 4.16 and Article 5 with respect to the outstanding Notes and Subsidiary
Guarantees 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 (it being understood that such Notes and
Subsidiary Guarantees shall not be deemed outstanding for accounting purposes).
For this purpose, such Covenant Defeasance means that, with respect to the
outstanding Notes and Subsidiary Guarantees, 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(iii), (iv) or (v), but, except as specified
above, the remainder of this Indenture and such Notes and Subsidiary Guarantees
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.01 of the option applicable to this Section 8.03, Sections 6.01(iii)
through 6.01(viii) 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 Section 8.03 to the outstanding Notes and Subsidiary
Guarantees:
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(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 7.10 who shall agree to comply with the
provisions of this Article Eight applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Notes, (a) cash in U.S. Dollars in an amount, or (b)
non-callable Government Securities which through the scheduled payment
of principal and interest and Liquidated Damages, if any, in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, cash in U.S. Dollars in an
amount, or (c) a combination thereof, in such amounts, as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the outstanding Notes on the stated
maturity 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 of such principal or
installment of principal, premium, if any, or interest; provided that
the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such non-callable Government Securities to said
payments with respect to the Notes;
(2) In the case of an election under Section 8.02, either
(i) (A) the Notes will become due and payable at their stated maturity
within one year after the date of such election pursuant to Section
8.02 or, within one year after the date of such election, the Notes
will be redeemable at the option of the Company and will be redeemed
by the Company pursuant to irrevocable instructions issued to the
Trustee at the time of such election for the giving of a notice of
redemption by the Trustee for such redemption, and (B) the Company
shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably satisfactory to the Trustee to the effect
that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred or (ii) the Company
shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably satisfactory 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 date hereof, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance has not occurred;
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(3) In the case of an election under Section 8.03, 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 in 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;
(4) No Default or Event of Default with respect to the
Notes shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or, in so far as
Section 6.01(ix) or (x) is concerned, at any time in the period ending
on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration
of such period);
(5) Such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under,
the New Credit Facility or any other material agreement or instrument
(other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of
its Restricted Subsidiaries is bound;
(6) The Company shall have delivered to the Trustee an
Officer's Certificate stating that the deposit made by the Company
pursuant to its election under Section 8.02 or 8.03 was not made by
the Company with the intent of preferring the Holders over other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(7) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel in the United States,
each stating that all conditions precedent provided for relating to
either the Legal Defeasance under Section 8.02 or the Covenant
Defeasance under Section 8.03 (as the case may be) have been complied
with as contemplated by this Section 8.04.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06, 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 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 or any Subsidiary 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.
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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 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
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 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(1)), are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06 REPAYMENT TO THE 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,
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 published once, in 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, 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 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, as
the case may be; provided that, if the Company makes any payment of principal
of, premium, if any, or interest or Liquidated Damages, if any, 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 and provided, further, that if such
order or judgment is issued in connection with the insolvency, receivership or
other similar occurrence with respect to the Trustee, upon the reinstatement of
such obligations the Company shall be released from its obligations under
Sections 4.03, 4.04, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15
and 4.16 and Article 5.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of Certificated Notes;
(c) to provide for the assumption of the Company's or a
Subsidiary Guarantor's obligations to the Holders of the Notes in the
case of a merger or consolidation pursuant to Article 5 hereof or
Section 10.03 hereof, as applicable;
(d) to provide for additional Subsidiary Guarantors as
set forth in Section 4.16;
(e) 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 hereunder of any Holder of the Note;
or
(f) 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 Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 9.06 hereof, the Trustee
shall join with the Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into such supplemental indenture which
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS
The Company, the Subsidiary Guarantors and the Trustee may amend or
supplement this Indenture or the Notes with the written consent of the Holders
of at least a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a purchase of, tender offer for
or exchange offer for the Notes) and any existing Default (including, without
limitation, an acceleration of the Notes) or compliance with any provision of
this Indenture or the Notes or Subsidiary Guarantees may be waived with the
written consent of the Holders of at least a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
purchase of, tender offer for or exchange offer for the Notes).
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Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Company and
the Subsidiary Guarantors in the execution of such supplemental indenture
unless such 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 supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After a supplement, amendment or waiver under this Section becomes
effective, the Company shall mail to the Holders of each Note affected thereby
a notice briefly describing the supplement, amendment 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 supplemental indenture,
amendment or waiver. Subject to Sections 6.03, 6.04(a) and 6.07 hereof, the
Holders of a majority in principal amount of the Notes then outstanding may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, a supplement, amendment or waiver under this Section may not (with
respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to redemption of the
Notes other than provisions relating to Sections 3.09, 4.06 and 4.07
hereof;
(3) reduce the rate of or change the time for payment of
interest, including default interest, or Liquidated Damages on any
Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages on
any Note (except a recision of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in money other than that stated in
the Note;
(6) make any change in Section 6.04(a) or 6.07 hereof or in
this sentence of this Section 9.02 or the rights of Holders of Notes
to receive payments of principal of or premium, if any, or interest or
Liquidated Damages on the Notes;
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(7) waive a redemption payment with respect to any Note
(other than a payment required by the provisions of Sections 4.06 or
4.07 hereof); or
(8) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment to this Indenture, the Subsidiary Guarantees or the
Notes shall be set forth in a supplemental indenture that complies with the TIA
as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS
Until a supplement, amendment or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note.
However, any such Holder or subsequent Holder may revoke the consent as to its
Note if the Trustee receives written notice of revocation before the date the
waiver or amendment becomes effective. An amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders must consent to such supplement, amendment or waiver.
If the Company fixes a record date, the record date shall be fixed at (i) the
later of 30 days prior to the first solicitation of such consent or the date of
the most recent list of Holders furnished to the Trustee prior to such
solicitation pursuant to Section 2.05, or (ii) such other date as the Company
shall designate.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about a supplement,
amendment 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 supplement, amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such supplement, amendment or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an 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 as conclusive evidence that
such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance
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with its terms. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it.
ARTICLE 10
SUBSIDIARY GUARANTEES
SECTION 10.01 SUBSIDIARY GUARANTEES
Subject to the provisions of this Article 10, each Subsidiary
Guarantor, jointly and severally, hereby unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, that: (i) the principal of, premium, if any,
interest and Liquidated Damages, if any, 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, premium, if any, (to the extent
permitted by law) interest on any interest, if any, and Liquidated Damages, 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 (ii) 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. Failing payment when
due of any amount so guaranteed or failing performance of any other obligation
of the Company to the Holders, for whatever reason, each Subsidiary Guarantor
shall be jointly and severally 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 the Subsidiary
Guarantees, and shall entitle the Trustee or the Holders of Notes to accelerate
the 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 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 Subsidiary 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 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
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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 principal, premium, if any, and interest on the Notes
and all other costs provided for under this Indenture, or as provided in
Section 8.02.
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 obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. 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 obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 6 hereof, such 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 10.02 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
To evidence its Subsidiary Guarantee set forth in Section 10.01
hereof, each of the Subsidiary Guarantors agrees that a notation of the
Subsidiary Guarantees substantially in the form included in Exhibit A-1 hereto
shall be endorsed on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of the Subsidiary Guarantors by
an Officer of the Subsidiary Guarantors and attested to by an Officer other
than the Officer executing this Indenture.
Each of the Subsidiary Guarantors agrees that the Subsidiary
Guarantees set forth in this Article 10 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.
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.
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 on behalf of the Subsidiary Guarantors.
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SECTION 10.03 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 Subsidiary Guarantor shall no longer
have any force or effect.
(b) Except as provided in Section 10.03(a), or a transaction
referred to in Section 10.04, no Subsidiary Guarantor shall, 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)
another corporation, Person or entity other than the Company or another
Subsidiary Guarantor unless (i) subject to the provisions of Section 10.04
hereof, the entity or Person formed by or surviving any such consolidation or
merger (if other than such Subsidiary Guarantor) assumes all the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture
pursuant to a supplemental indenture substantially in the form of Exhibit C
hereto, (ii) immediately after such transaction no Default or Event of Default
exists, (iii) the Company shall, 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 4.09, and (iv) such Subsidiary Guarantor shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
addressed to the Trustee, each stating that such consolidation or merger and
such supplemental indenture, if any, comply with this Indenture and that such
supplemental indenture is enforceable. In case of any such consolidation or
merger and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee substantially in the form of
Exhibit C hereto, of the Subsidiary Guarantees endorsed upon 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
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 so issued 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 date of the execution hereof. The requirements of clause (iii) of this
Section 10.03(b) shall not apply in the case of a consolidation or merger with
or into the Company or any other Subsidiary Guarantor. All the Subsidiary
Guarantees so issued shall in all respects have the same legal rank and benefit
under the 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 date of execution hereof.
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(c) The Trustee, subject to the provisions of Section 10.04
hereof, shall be entitled to receive an Officer's Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption of Obligations, comply with the provisions
of this Section 10.03. Such Officer's Certificate and Opinion of Counsel shall
comply with the provisions of Section 12.05.
SECTION 10.04 RELEASES FOLLOWING SALE OF ASSETS
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 of the Capital Stock of any
Subsidiary Guarantor, which sale or other disposition otherwise complies with
the 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 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 of
the assets of such Subsidiary Guarantor) shall be released from and relieved of
any obligations under its Subsidiary Guarantee; provided that in the event of
an Asset Sale, the Net Proceeds from such sale or other disposition are treated
in accordance with the provisions of Section 4.07 hereof. Upon delivery by the
Company to the Trustee of an Officer's 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 4.07 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee. Any Subsidiary
Guarantor not released from its 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 10.
SECTION 10.05 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 the 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
obligations of such Subsidiary Guarantor under this Article 10 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 obligations of such other Subsidiary Guarantor
under this Article 10, result in the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee of such Subsidiary Guarantor not constituting a
fraudulent transfer or conveyance.
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SECTION 10.06 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 Officer's 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 Guarantor, shall be sufficient if
evidenced as described in Section 12.02 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 12.02 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 12.04 hereof as if all references therein
to the Company were references to such Subsidiary Guarantor.
(e) In the case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article 10 shall in each case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent.
SECTION 10.07 RELEASE OF SUBSIDIARY GUARANTEES
Concurrently with the defeasance of the Notes under Section 8.02
hereof, the Subsidiary Guarantors shall be released from all of their
obligations under the Subsidiary Guarantees and this Article 10.
SECTION 10.08 SUBORDINATION OF SUBSIDIARY GUARANTEES
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee pursuant to this Article 10 is subordinated in right of payment to
the prior payment in full in cash of all Senior Debt of the Subsidiary
Guarantor on the same basis as the Notes are subordinated to Senior Debt of the
Company. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by any of the
Subsidiary Guarantors only at such times as they may receive and/or retain
payments in respect of Notes pursuant to this Indenture, including Article 11
hereof. In the event that the Trustee receives any Subsidiary Guarantor
payment at a time when the Trustee has actual knowledge that such payment is
prohibited by the foregoing sentence, such Subsidiary Guarantor payment shall
be paid over and delivered to the holders of the Senior Debt of the Subsidiary
Guarantor remaining unpaid, to the extent necessary to pay in full all such
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Senior Debt. In the event that a Holder receives any Subsidiary Guarantor
payment at a time when such payment is prohibited by the foregoing sentence,
the Subsidiary Guarantor payment shall be paid over and delivered to the
holders of the Senior Debt of such Subsidiary Guarantor remaining unpaid, to
the extent necessary to pay in full all such Senior Debt.
Each Holder of a Note by its acceptance thereof (a) agrees to and
shall be bound by the provisions of this Section 10.08, (b) authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary and appropriate to effectuate the subordination so provided, and (c)
appoints the Trustee as the Holder's attorney-in-fact for any and all such
purposes.
ARTICLE 11
SUBORDINATION
SECTION 11.01 AGREEMENT TO SUBORDINATE
The Company agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Note (including but not limited to Liquidated
Damages) is subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full in cash of all Senior
Debt (whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed), and that the subordination is for the benefit of the
holders of Senior Debt.
SECTION 11.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY
Upon any payment or distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshaling of
the Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive
payment in full in cash of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt whether
or not allowable as a claim in any such proceeding) before Holders
shall be entitled to receive any payment with respect to the Notes
(except that Holders may receive (i) Permitted Junior Securities, and
(ii) payments and other distributions made from any defeasance trust
created pursuant to Section 8.01 hereof); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full in cash, any
distribution to which Holders would be entitled but for this Article
shall be made to holders of Senior Debt (except that Holders may
receive (i) Permitted Junior Securities, and (ii) payments and other
distributions made from any defeasance trust created pursuant to
Section 8.01 hereof), as their interests may appear.
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SECTION 11.03 DEFAULT ON DESIGNATED SENIOR DEBT
The Company may not make any payment or distribution to the Trustee or
any Holder in respect of Obligations with respect to the Notes (other than (i)
Permitted Junior Securities, and (ii) payments and other distributions made
from any defeasance trust created pursuant to Section 8.01 hereof) until all
principal and other Obligations with respect to the Senior Debt have been paid
in full if:
(i) a default in the payment of any principal or other
Obligations with respect to Senior Debt occurs and is continuing; or
(ii) a default, other than a payment default, on Senior
Debt occurs and is continuing that then permits holders of the Senior
Debt to accelerate its maturity and the Trustee receives a notice of
the default (a "Payment Blockage Notice") from a Person who may give
it pursuant to Section 11.11 hereof. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section unless and until (a) at
least 365 days shall have elapsed since the delivery of the
immediately prior Payment Blockage Notice, and (b) all scheduled
payments of principal, premium, if any, and interest on the Notes that
have come due have been paid in full in cash. No nonpayment default
that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in
respect of the Notes upon the earlier of:
(1) in the case of a Default referred to in Section
11.03(i) hereof, upon the date which the default is cured or waived,
or
(2) in the case of a default referred to in Section
11.03(ii) hereof, on the earlier of the date on which such default is
cured or waived or 179 days after the date on which the Payment
Blockage Notice is received, unless a Payment Default on any Senior
Debt then exists and such Senior Debt has not been accelerated.
SECTION 11.04. ACCELERATION OF NOTES
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify Representatives of the holders of Senior Debt
of the acceleration.
SECTION 11.05. WHEN DISTRIBUTION MUST BE PAID OVER
In the event that the Trustee receives any payment or distribution of
any Obligations with respect to the Notes at a time when the Trustee has actual
knowledge that such payment is prohibited by Section 11.02 or 11.03 hereof,
such payment or distribution shall be held by the Trustee in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders
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of Senior Debt as their interests may appear or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
In the event that a Holder receives any payment or distribution of any
Obligations with respect to the Notes at a time when such payment is prohibited
by Section 11.03 hereof, such payment or distribution shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 11, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall
be entitled by virtue of this Article 11, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 11.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt as
provided in this Article.
SECTION 11.07. SUBROGATION
After all Obligations with respect to the Senior Debt are paid in full
in cash and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders
have been applied to the payment of Senior Debt. A distribution made under
this Article 11 to holders of Senior Debt that otherwise would have been made
to Holders is not, as between the Company and Holders, a payment by the Company
on the Notes.
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SECTION 11.08. RELATIVE RIGHTS
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors
of the Company other than their rights in relation to holders of
Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal of,
interest or Liquidated Damages, if any, on a Note on the due date, the failure
is still a Default or Event of Default.
SECTION 11.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph,
the holders of the Senior Debt may, at any time and from time to time, without
the consent of or notice to the Trustee or Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article 11 or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time or payment
of, or renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; provided that any such
alteration shall not (a) increase the amount of Senior Debt outstanding in a
manner prohibited by this Indenture, or (b) otherwise violate Section 4.09
hereof, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt, (iii) release any Person
in any manner for the collection of Senior Debt; provided that any such sale,
exchange, release or other transaction shall not violate Section 4.13 hereof,
and (iv) exercise or refrain from exercising any rights against the Company or
any other Person; provided that in no event shall any such actions limit the
right of the Holder to take any action to accelerate the maturity of the Notes
in accordance with the provisions set forth in Article 6 or to pursue any
rights or remedies against the parties to this Indenture under this Indenture
or under applicable laws if the taking of such action does not otherwise
violate the terms of this Article 11.
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SECTION 11.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 11, the Trustee and the Holders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 11. Notwithstanding the foregoing, with respect only to
Obligations under the New Credit Facility, the Trustee and the Holders shall be
entitled to rely only upon the order or decree made by any court of competent
jurisdiction or upon a certificate of a Representative of the New Credit
Facility for the purpose of ascertaining the matters described in the preceding
sentence.
SECTION 11.11. RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article. Only the Company or a
Representative of holders of Designated Senior Debt may give the notice.
Nothing in this Article 11 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
SECTION 11.12. AUTHORIZATION TO EFFECT SUBORDINATION
Each Holder of a Note by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 11, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, a Representatives of Senior Debt is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
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SECTION 11.13. AMENDMENTS
The provisions of this Article 11 or any related definitions shall not
be amended or modified in a manner adverse to the holders of Senior Debt
without the written consent of the holders of all Senior Debt.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the duties imposed by TIA Section
318(c) shall control.
SECTION 12.02 NOTICES
Any notice or communication by the Company, any Subsidiary Guarantor
or the Trustee to the other is duly given if in writing and delivered in Person
or mailed by first-class mail, telecopier or overnight air courier guaranteeing
next day delivery, to the other's address:
If to the Company or a Subsidiary Guarantor:
HydroChem Industrial Services, Inc
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
If to the Trustee:
Norwest Bank, Minnesota, N.A.
Corporate Trust
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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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; five days after being deposited in the mail, postage
prepaid, if mailed; 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 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.
SECTION 12.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 12.04 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:
(1) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 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 complied
with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
complied with.
SECTION 12.05 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 include:
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(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 has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 12.06 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.
SECTION 12.07 LEGAL HOLIDAYS
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.
SECTION 12.08 NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Notes, this
Indenture or any Subsidiary Guarantee or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes 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 12.09 DUPLICATE ORIGINALS
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 12.10 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 (without
regard to conflicts of law provisions). Each party hereto irrevocably submits
itself to the non-exclusive jurisdiction of the state and federal courts of New
York for purposes of this Indenture and agrees and consents that service of
process
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may be made upon it in any legal proceeding relating to this Indenture by any
means allowed under federal or New York law. The parties hereto hereby waive
and agree not to assert, by way of motion, as a defense or otherwise, that any
such proceeding is brought in an inconvenient forum or that the venue thereof
is improper.
SECTION 12.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 12.12 SUCCESSORS
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Notes and the Subsidiary Guarantees shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 12.13 SEVERABILITY
In case any provision in this Indenture, the Notes or the Subsidiary
Guarantees 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 12.14 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 12.15 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
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SIGNATURES
HYDROCHEM INDUSTRIAL SERVICES,
INC.
By: /s/ B. XXX XXXXXX, JR.
-------------------------------
B. Xxx Xxxxxx, Jr.
President and Chief
Executive Officer
HYDROCHEM INTERNATIONAL, INC.
By: /s/ B. XXX XXXXXX, JR.
-------------------------------
B. Xxx Xxxxxx, Jr.
President and Chief
Executive Officer
NORWEST BANK, MINNESOTA, N.A.,
as Trustee
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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EXHIBIT A
(Face of Security)
10 3/8% [Series A] [Series B] Senior Subordinated Notes due 2007
CUSIP No. _________
No. ___ $110,000,000
HYDROCHEM INDUSTRIAL SERVICES, INC., a Delaware corporation, promises
to pay to Cede & Co. or registered assigns, the principal sum of One Hundred
Ten Million Dollars ($110,000,000) on August 1, 2007.
Interest Payment Dates: February 1 and August 1, commencing February 1, 1998
Record Dates: January 15 and July 15 (whether or not a Business Day)
HYDROCHEM INDUSTRIAL SERVICES, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
TRUSTEE CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes referred to in the
within-mentioned Indenture
NORWEST BANK, MINNESOTA, N.A.
as Trustee
By:
--------------------------------
(Authorized Signature)
A-1
87
(Back of Security)
10 3/8% [Series A] [Series B] Senior Subordinated Notes due 2007
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("DTC") to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]1/
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR ANY APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, OR (b) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.]2/
_________________
1 This paragraph shall be included only if the Note is a Global Note.
2 This paragraph shall be removed upon the exchange of Series A
Notes for Series B Notes in the Exchange Offer or upon the sale of
the Series A Notes under a Shelf Registration Statement pursuant
to the Registration Rights Agreement.
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Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. HydroChem Industrial Services, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Note at the rate and in the manner specified below and shall pay the
Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. Interest on the Notes will accrue at the
rate of 10 3/8% per annum and will be payable semi-annually in arrears on
February 1 and August 1, commencing on February 1, 1998, or if any such day is
not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"), to Holders of record on the immediately preceding January 15
and July 15, respectively.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. Interest on the Notes shall accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from the Issue Date of original issuance of the
Notes. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the applicable interest rate on the Notes plus one percent; it
shall pay interest on overdue installments of interest (without regard to
applicable grace periods) at the same rate, to the extent lawful, (i) if
payment is made during the period of five Business Days following the date on
which such interest was due, to the Persons who were to receive payment on the
date such interest was due or (ii) if payment is made after such period, to the
Persons who are Holders on a subsequent special record date, which date shall
be at the earliest practicable date but in all events at least five Business
Days prior to the payment date.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) and Liquidated Damages, if any, 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.
Principal, premium, if any, interest and Liquidated Damages, if any, on the
Notes shall be payable at the office or agency of the Company maintained for
such purpose within the City and State of New York, or at the option of the
Company, payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders of the Notes at their respective addresses set
forth in the register of Holders of Notes; provided that all payments with
respect to Notes the Holders of which have given wire transfer instructions to
the Company and the Trustee shall be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
The Company shall pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, 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 as Paying Agent or Registrar.
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4. INDENTURE. The Company issued the Notes under an Indenture
dated as of August 1, 1997 ("Indenture") among the Company, the Subsidiary
Guarantor and the Trustee. 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 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the
date of the Indenture. 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
terms of the Indenture shall govern any inconsistencies between the Indenture
and the Notes. Terms not otherwise defined herein shall have the meanings
assigned in the Indenture. The Notes are general unsecured obligations of the
Company limited to $110,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Notes are not
redeemable at the Company's option prior to August 1, 2002. Thereafter, the
Notes will be subject to redemption at any time at the option of the Company,
in whole or in part, upon not less than 30 nor more than 90 days' notice, at
the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Liquidated Damages, if any, to the
applicable redemption date, if redeemed during the twelve-month period
beginning on August 1 of the years indicated below:
YEAR PERCENTAGE
2002 . . . . . . . . . . . . . . . . . . . . . . . 105.188%
2003 . . . . . . . . . . . . . . . . . . . . . . . 103.458%
2004 . . . . . . . . . . . . . . . . . . . . . . . 101.729%
2005 and thereafter . . . . . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, at any time prior to August 4,
2000, the Company may on any one or more occasions redeem up to an aggregate
35% of the original aggregate principal amount of Notes at a redemption price
of 109.375% of the principal amount thereof, plus accrued and unpaid interest
and Liquidated Damages, if any, to the redemption date, with the net proceeds
of one or more Equity Offerings; provided that at least 65% of the original
aggregate principal amount of Notes originally issued remains outstanding
immediately after such redemption; and provided, further, that such redemption
shall occur within 90 days of the date of the closing of any such Equity
Offering.
6. MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes, except as provided in paragraph 7
below.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required
to offer to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price in cash equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid
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interest and Liquidated Damages, if any, to the date of purchase. Holders of
Notes that are subject to an offer to purchase will receive an offer to
purchase from the Company prior to any related purchase date, and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
(b) If the Company consummates any Asset Sale, the Company shall
be required, under certain circumstances, to apply the Excess Proceeds thereof
to an offer to all Holders of Notes to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds at an offer price in
cash equal to 100% of the principal amount of the Notes, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase, in
accordance with the procedures set forth in the Indenture. Holders of Notes
that are subject to an offer to purchase will receive an offer to purchase from
the Company prior to any related purchase date, and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in face
denominations of $1,000 and integral multiples of $1,000. The Notes may be
transferred and exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
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. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption except the unredeemed portion of any Note being
redeemed in part. Also, it need not (i) register the transfer of or exchange
any Notes during any period (a) beginning at the opening of business on a
Business Day fifteen (15) days before the day of any selection of Notes for
redemption and ending at the close of business on the day of selection or (b)
beginning at the opening of business on a Business Day fifteen (15) days before
an interest payment date and ending on the close of business on such interest
payment date.
9. SUBORDINATION. The Notes and the Subsidiary Guarantees are
subordinated in right of payment, to the extent and in the manner provided in
Article 11 of the Indenture, to the prior payment in full of all Senior Debt.
The Company agrees, and each Holder by accepting a Note consents and agrees, to
the subordination provided in the Indenture and authorizes the Trustee to give
it effect.
10. PERSONS DEEMED OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Note, the Trustee, any Agent
and the Company may deem and treat the Person in whose name this Note is
registered as its absolute owner for the purpose of receiving payment of
principal of and interest on this Note and for all other purposes whatsoever,
whether or not this Note is overdue, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary. The registered holder of
a Note shall be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Notes and the Subsidiary Guarantees may be
amended or supplemented with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and any existing
Default or Event of Default (other than a Default or Event of Default relating
to the payment of principal, premium, interest or Liquidated Damages, if any,
except a payment default resulting
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from an acceleration that has been rescinded) or compliance with any provision
of the Indenture, the Notes or the Subsidiary Guarantees may be waived with the
written consent of the Holders of at least a majority in principal amount of
the then outstanding Notes. Without the consent of any Holder, the Indenture
or the Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place
of Certificated Notes, to provide for the assumption of the Company's or a
Subsidiary Guarantor's obligations to Holders of the Notes in case of a merger
or consolidation, to provide for additional Subsidiary Guarantors, to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not materially adversely affect the legal rights of any
such Holder under the Indenture, or to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act or to allow any Subsidiary Guarantor to guarantee
the Notes.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes (whether or not prohibited by the subordination
provisions of the Indenture); (ii) default in payment when due of the principal
of or premium, if any, on the Notes (whether or not prohibited by the
subordination provisions of the Indenture); (iii) failure by the Company to
comply with the provisions of Section 4.06, 4.07 or 5.01 of the Indenture; (iv)
failure by the Company for 30 days after written notice from the Trustee or the
Holders of at least 30% in principal amount of the then outstanding Notes to
comply with Sections 4.08 and 4.09 hereof; (v) failure by the Company for 60
days after written notice from the Trustee or Holders of 30% in principal
amount of the then outstanding Notes to comply with any of its other agreements
in this Indenture or the Notes; (vi) 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 acing on behalf of any
Subsidiary Guarantor, shall deny or disaffirm its obligations under its
Subsidiary Guarantee; (vii) 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 Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted 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 when due at final stated maturity (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 such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates
$7,500,000 or more; (viii) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $7,500,000, which
judgments are not paid, discharged or stayed for a period of 60 days; or (ix)
certain events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 30% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company, any
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes will
become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.
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The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. 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 or interest) if
it determines that withholding notice is in their interest. 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.
13. TRUSTEE DEALINGS WITH THE COMPANY. Subject to the provisions
of the Indenture, the Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company,
the Subsidiary Guarantors or any Affiliate of each with the same rights it
would have if it were not Trustee. Subject to the provisions of Section 310(b)
of the Trust Indenture Act, the Trustee shall be permitted to engage in
transactions with the Company and its Subsidiaries other than those
contemplated by the Indenture.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, or stockholder of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Notes, the Indenture or any Subsidiary Guarantee
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes, 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 and any Subsidiary Guarantee.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
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
SECURITIES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transferred Restricted Securities shall have all the
rights set forth in the Registration Rights Agreement dated as of the date of
the Indenture, between the Company and the parties named on the signature pages
thereof (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.
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The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
HydroChem Industrial Services, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
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SUBSIDIARY GUARANTEE
The Subsidiary Guarantor listed below (hereinafter referred to as the
"Subsidiary Guarantor," which term includes any successors or assigns under the
Indenture (the "Indenture") and any additional Subsidiary Guarantors), has
irrevocably and unconditionally guaranteed (i) the due and punctual payment of
the principal of, premium, if any, interest and Liquidated Damages, if any, on
the 10 3/8% Senior Subordinated Notes due August 1, 2007 (the "Notes") of
HydroChem Industrial Services, Inc., a Delaware corporation (the "Company"),
whether at stated maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal, and premium if any, and (to the
extent permitted by law) interest on any interest, if any, and Liquidated
Damages, if any, on the Notes, and the due and punctual performance of all
other obligations of the Company, to the Holders or the Trustee all in
accordance with the terms set forth in Article 10 of the Indenture, (ii) in
case of any extension of time of payment or renewal of any Notes or any such
other obligations, that the same will 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, and (iii) the payment of any and
all costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Subsidiary Guarantee.
The obligations of the Subsidiary Guarantor to the Holder and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 10 of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Guarantee.
No stockholder, officer, director, employee or incorporator, as such,
past, present or future of the Subsidiary Guarantor shall have any liability by
reason of his or its status as such stockholder, officer, director, employee or
incorporator for any obligations of the Subsidiary Guarantor under the Notes,
the Indenture or its Subsidiary Guarantee or for any claim based on, in respect
of, or by reason of, such obligations or their creation.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon the Subsidiary Guarantor and its successors
and assigns until full and final payment of all of the Company's obligations
under the Notes and Indenture and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders, and, in the event of any transfer
or assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a Guarantee of payment and not of collectibility.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The obligations of the Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
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THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
HYDROCHEM INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
ATTESTED TO:
By:
-------------------------
Name:
Title:
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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 _______________________________________________________
agent 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 all or any part of this Note
purchased by the Company pursuant to Section 4.06 or 4.07 of the Indenture,
check the box below:
[ ] Section 4.06 [ ] Section 4.07
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.06 or 4.07 of the Indenture, state the
amount you elect to have purchased (if all, write "ALL"): $___________
Date: Your Signature:
-------------------------- ------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
----------------
Signature Guarantee:
X-00
00
XXXXXXXX XX XXXXXXXXX FOR CERTIFICATED NOTES
The following exchanges of a part of this Global Note for
Certificated Notes have been made:
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized officer
in Principal Amount Principal Amount of following such of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease (or increase) Custodian
--------------------------------------------------------------------------------------------------------------
X-00
00
XXXXXXX X-0
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
Norwest Bank, Minnesota, N.A.
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Re: 10 3/8% Senior Subordinated Notes due 2007 of HydroChem
Industrial Services, Inc.
Reference is hereby made to the Indenture, dated as of August 1, 1997
(the "Indenture"), among HydroChem Industrial Services, Inc., as issuer (the
"Company"), the Subsidiary Guarantor and Norwest Bank, Minnesota, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
This letter relates to $_________ principal amount of Notes which are
evidenced by a Certificated Note (CUSIP No. ) and held with
the Depositary in the name of (the "Transferor").
The Transferor has requested a transfer of such Certificated Note to a Person
who will take delivery thereof in the form of an equal principal amount of Notes
evidenced by one or more Certificated Notes (CUSIP No. ) which Notes,
immediately after such transfer, are to be delivered to the transferor at the
address set forth below.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Notes are being acquired for the Transferor's own
account, without transfer;
or
[ ] the Surrendered Notes are being transferred to the Company or its
Subsidiaries;
or
[ ] the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Surrendered Notes are being transferred to
a Person that the Transferor reasonably believes is purchasing the
Surrendered Notes for its own account, or for one or more accounts
with respect to which such Person exercises sole
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100
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting the requirements of Rule 144A;
or
[ ] the Surrendered Notes are being transferred in a transaction permitted
by Rule 144 under the Securities Act;
or
[ ] the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Note and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Rule 144A under the Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
-------------- -----
cc: HydroChem Industrial Services, Inc.
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EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO CERTIFICATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
Norwest Bank, Minnesota, N.A.
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Re: 10 3/8% Senior Subordinated Notes due 2007 of HydroChem
Industrial Services, Inc.
Reference is hereby made to the Indenture, dated as of August 1, 1997
(the "Indenture"), among HydroChem Industrial Services, Inc., as issuer (the
"Company"), the Subsidiary Guarantor and Norwest Bank, Minnesota, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by a Rule 144A Global Note (CUSIP No. ) and held
with the Depositary in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Certificated Notes
(CUSIP No. ) which Notes, immediately after such transfer, are to
be delivered to the transferor at the address set forth below.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Notes are being transferred to the beneficial owner of
such Notes;
or
[ ] the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Surrendered Notes are being transferred to
a Person that the Transferor reasonably believes is purchasing the
Surrendered Notes for its own account, or for one or more accounts
with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A;
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or
[ ] the Surrendered Notes are being transferred in a transaction permitted
by Rule 144 under the Securities Act;
or
[ ] the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Note and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Rule 144A under the Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
-------------- -----
-----------------------------------
[Address of Transferor]
-----------------------------------
cc: HydroChem Industrial Services, Inc.
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103
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM CERTIFICATED NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(e) of the Indenture)
Norwest Bank, Minnesota, N.A.
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Re: 10 3/8% Senior Subordinated Notes due 2007 of HydroChem
Industrial Services, Inc.
Reference is hereby made to the Indenture, dated as of August 1, 1997
(the "Indenture"), among HydroChem Industrial Services, Inc., as issuer (the
"Company"), the Subsidiary Guarantor and Norwest Bank, Minnesota, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
This letter relates to $_________ principal amount of Notes which are
evidenced by a Certificated Note (CUSIP No. ) and held with
the Depositary in the name of (the "Transferor").
The Transferor has requested a transfer of such Certificated Note to a Person
who will take delivery thereof in the form of a beneficial interest in a Global
Note (CUSIP No. ).
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Notes are being transferred to the beneficial owner of
such Notes;
or
[ ] the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Surrendered Notes are being transferred to
a Person that the Transferor reasonably believes is purchasing the
Surrendered Notes for its own account, or for one or more accounts
with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A;
or
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104
[ ] the Surrendered Notes are being transferred in a transaction permitted
by Rule 144 under the Securities Act;
or
[ ] the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Rule 144A under the Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
------------- -----
cc: HydroChem Industrial Services, Inc.
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105
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
____________, 1997 between Subsidiary Guarantor (the "New Subsidiary
Guarantor"), a subsidiary of HydroChem Industrial Services, Inc., a Delaware
corporation (the "Company"), and Norwest Bank, Minnesota, National Association,
as trustee under the indenture referred to below (the "Trustee"). Capitalized
terms used herein and not defined herein shall have the meaning ascribed to
them in the Indenture (as defined below).
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture (the "Indenture"), dated as of August 1, 1997, providing
for the issuance of an aggregate principal amount of $110,000,000 of 10 3/8%
Senior Subordinated Notes due 2007 (the "Notes");
WHEREAS, Section 4.13 of the Indenture provides that under certain
circumstances the Company may cause certain of its subsidiaries to execute and
deliver to the Trustee a supplemental indenture pursuant to which such
subsidiaries shall unconditionally guarantee all of the Company's obligations
under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions
set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
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
New Subsidiary Guarantor and the Trustee 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 ascribed to them in the Indenture.
2. AGREEMENT TO SUBSIDIARY GUARANTEE. The New Subsidiary
Guarantor hereby agrees, jointly and severally with all other Subsidiary
Guarantors, to guarantee the Company's Obligations under the Notes and the
Indenture on the terms and subject to the conditions set forth in Article 10 of
the Indenture and to be bound by all other applicable provisions of the
Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, shareholder or agent of any
Subsidiary Guarantor, as such, shall have any liability for any obligations of
the Company or any Subsidiary Guarantor under the Notes, any Subsidiary
Guarantees, the Indenture of this Supplemental 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.
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106
4. NEW YORK LAW TO GOVERN. The internal law of the State of New
York shall govern and be used to construe this Supplemental Indenture.
5. 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.
6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction hereof.
7. 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 the correctness of the recitals
of fact contained herein, all of which recitals are made solely by the New
Subsidiary Guarantor.
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.
Dated: (NAME OF NEW SUBSIDIARY GUARANTOR)
------------------------
By:
------------------------------------
Name:
Title:
Dated: NORWEST BANK, MINNESOTA,
------------------------ NATIONAL ASSOCIATION
as Trustee
By:
------------------------------------
Name:
Title:
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