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Exhibit 4(b)
INDENTURE, dated as of May 29, 1998 between LES, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), Xxxxxxx Environmental Services, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Parent"), each of the Company's wholly-owned domestic subsidiaries listed
on Schedule I hereto (collectively, the "Subsidiary Guarantors" and together
with the Parent, the "Guarantors") and The Bank of Nova Scotia Trust Company of
New York, a bank and trust company duly organized and existing under the laws of
New York, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of 9 1/4% Senior
Subordinated Notes due 2008 (herein called the "Initial Securities"), and 9 1/4%
Exchange Senior Subordinated Notes due 2008 (the "Exchange Securities" and,
together with the Initial Securities, the "Securities") to be issued in exchange
for the Initial Securities of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
Each of the Guarantors has duly authorized its guarantee of the
Securities, and to provide therefor each of them has duly authorized the
execution and delivery of this Indenture.
Upon the issuance of the Exchange Securities, if any, or the effectiveness
of the Exchange Offer Registration Statement (as defined herein) or, under
certain circumstances, the effectiveness of the Shelf Registration Statement (as
defined herein), this Indenture will be subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
The Company has also duly authorized the creation of up to $75,000,000
aggregate principal amount of additional Securities to be issued from time to
time having identical terms and conditions to the Initial Securities offered
hereby.
All things necessary have been done to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of the Company and the Guarantors, each in accordance with their
respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
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For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person is merged with or into the Company or becomes a Restricted
Subsidiary or (b) assumed in connection with the acquisition of assets from such
Person; provided that any Indebtedness of such Person that is redeemed,
defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transaction by which such Person is merged with or into the
Company, becomes a Restricted Subsidiary or such assets are acquired from such
Person shall not be Acquired Indebtedness.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Securities" has the meaning set forth in Section 301.
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"Adjusted Net Assets" has the meaning set forth in Section 1301.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Affected Obligor" has the meaning set forth in Section 1402.
"Affected Obligor Senior Indebtedness" has the meaning set forth in
Section 1402.
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock. For the purposes of this definition, "control", when used with respect to
any specified Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means applicable procedures of the Depositary,
Euroclear System or Cedel Bank S.A., as the case may be.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer") by
the Company or a Restricted Subsidiary, directly or indirectly, in one
transaction or a series of related transactions, of (a) any Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary), (b) all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries representing a division or
line of business or (c) any other properties or assets of the Company or any
Restricted Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (i) that is governed by the provisions of
Article VIII, (ii) between or among the Company and its Restricted Subsidiaries
pursuant to transactions that do not violate any other provision of this
Indenture, (iii) to any Person to the extent it constitutes a Restricted Payment
that is permitted under Section 1011, (iv) consisting of inventory or wornout,
obsolete or permanently retired equipment and facilities, (v) the gross proceeds
of which (exclusive of indemnities) do not exceed $5.0 million in connection
with any transfer or (vi) that constitutes a Permitted Investment.
"Asset Sale Offer" has the meaning set forth in Section 1013.
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"Asset Sale Purchase Date" has the meaning set forth in Section 1013.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding any subsequent
renewal or other extension options held by the lessee), discounted from the
respective due dates thereof to such date of determination at the rate of
interest per annum implicit in the terms of such lease, as determined in good
faith by the Company, compounded annually. The net amount of rent required to be
paid under any such lease for any such period shall be the amount of the rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates and similar charges and contingent
rents (such as those based on sales). In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated.
"Banks" means the banks and other financial institutions that from time to
time are lenders under the Senior Credit Facility.
"Blockage Notice" has the meaning set forth in Section 1403.
"Board of Directors" means, as the context requires, either the board of
directors of the Company or a Guarantor, as the case may be, or any duly
authorized committee of that board.
"Board Resolution" means, as the context requires, a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company or a
Guarantor, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" of any Person means any and all shares, partnership
interests, participations, rights in or other equivalents of, or interests in,
the equity of such Person, but excluding any debt securities convertible into
such equity.
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"Cash Equivalents" means (a) any evidence of Indebtedness with a maturity
of one year or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (b) certificates of deposit or acceptances or Eurodollar time deposits
with a maturity of one year or less of, and overnight bank deposits with, any
financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $500
million; (c) commercial paper with a maturity of one year or less issued by a
Person rated at least A-1 by S&P or at least P-1 by Xxxxx'x; (d) repurchase
obligations with a term of no more than 30 days for underlying securities of the
types described in clause (a) entered into with a bank meeting the
qualifications described in clause (b) above; (e) securities with maturities of
one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the
case may be) are rated at least A by S&P or A by Xxxxx'x; (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any financial institution satisfying the
requirements of clause (b) of this definition; and (g) funds which invest in any
of the foregoing.
"CEDEL" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Change of Control" means the occurrence of any of the following events:
(a) Any Person or "group" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of the voting
power of all classes of Voting Stock of the Company;
(b) During any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election to such Board of
Directors, or whose nomination for election by the stockholders of the
Company, was approved by a vote of 66 2/3% of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of the
Company then in office; or
(c) The Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution, other than a transaction that complies with
the provisions of Article VIII.
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"Change of Control Offer" has the meaning set forth in Section 1012.
"Change of Control Payment Date" has the meaning set forth in Section
1012.
"Closing Date" means the date on which the Initial Securities are
originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture, until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities (as if the final maturity of the Securities
was June 1, 2003) to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for Government
Securities" or (ii) if such release (or any successor release) is not published
or does not contain such prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations or (B) if the
Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated EBITDA" means, for any period, the sum of, without
duplication, Consolidated Net Income for such period, plus (or, in the case of
clause (d) below, plus or minus) the following items to the extent included in
computing Consolidated Net Income for such period (a) Fixed Charges for such
period, plus (b) the federal, state, local and foreign income tax expense of the
Company and its Restricted Subsidiaries for such period, plus (c) the
depreciation and amortization expense of the Company and its Restricted
Subsidiaries for
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such period, plus (d) any other non-cash charges for such period and minus
non-cash credits for such period, other than non-cash charges or credits
resulting from changes in prepaid assets or accrued liabilities in the ordinary
course of business; provided that income tax expense, depreciation and
amortization expense and non-cash charges and credits of a Restricted Subsidiary
shall be included in Consolidated EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income for such period.
"Consolidated Net Income" means, for any period, the net income (or net
loss) of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by excluding (a) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (b) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, (c) the net income (but not the
net loss) of any Person (other than the Company or a Restricted Subsidiary), in
which the Company or any Restricted Subsidiary has an equity interest, except
that the aggregate amount of dividends or other distributions actually paid to
the Company or any Restricted Subsidiary in cash during such period will be
included in such Consolidated Net Income, (d) the net income (or loss) of any
Person acquired by the Company or any Restricted Subsidiary in a "pooling of
interests" transaction attributable to any period prior to the date of such
acquisition, and (e) the net income (but not the net loss) of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is at the date of
determination restricted, directly or indirectly, except that the aggregate
amount of such net income that could be paid to the Company or a Restricted
Subsidiary thereof by loans, advances, intercompany transfers, principal
repayments or otherwise will be included in such Consolidated Net Income.
"Consolidated Net Tangible Assets" means, with respect to the Company, at
any date of determination, the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all
current liabilities (excluding current maturities of long-term debt and Capital
Lease Obligations) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly balance sheet of the Company and its
consolidated Restricted Subsidiaries and computed in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination, the
stockholders' equity of the Company and its Restricted Subsidiaries as set forth
on the most recently available quarterly or annual consolidated balance sheet of
the Company and its Restricted Subsidiaries, less any amounts attributable to
Disqualified Stock or any equity security convertible into or exchangeable for
Indebtedness, the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of the Capital Stock of the Company or
any of its Restricted Subsidiaries and less, to the extent included in
calculating such stockholders' equity of the Company and its Restricted
Subsidiaries, the stockholders' equity attributable to Unrestricted
Subsidiaries, each item to be determined in conformity
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with GAAP (excluding the effects of foreign currency adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
"Contingent Obligations" means, at any date of determination, (a) all
obligations of the Company and its Restricted Subsidiaries (and any Unrestricted
Subsidiaries for which the Company provides credit support or other similar
arrangements) in respect of performance bonds and letters of credit in the
nature of performance bonds and similar obligations and (b) all guarantees of
the Company and its Restricted Subsidiaries (and any Unrestricted Subsidiaries
for which the Company provides credit support or other similar arrangements) or
the obligations referred to in clause (a).
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at Xxx Xxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency Agreements" means, with respect to any Person, any spot or
forward foreign exchange agreements and currency swap, currency option or other
similar financial agreements or arrangements entered into by such Person or any
of its Restricted Subsidiaries in the ordinary course of business and designed
to protect against or manage exposure to fluctuations in foreign currency
exchange rates.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Assets" means the assets and properties acquired by the
Company in the Safety-Kleen Acquisition relating to (a) the European operations
of Safety-Kleen referred to in footnote 4 to the audited consolidated financial
statements of Safety-Kleen incorporated by reference into Safety-Kleen's Annual
Report on Form 10-K for the year ended January 3, 1998 and (b) the oil recovery
services provided by Safety-Kleen and set forth in the table under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Results of Operations--Revenues" incorporated by reference into
Safety-Kleen's Annual Report on Form 10-K for the year ended January 3, 1998.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness under
the Senior Credit Facility and (ii) any other issue of Senior Indebtedness or
refinancing thereof permitted by the definition of Senior Indebtedness, having a
principal amount of at least $25.0 million.
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"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors, to make a finding or otherwise
take action under the Indenture, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect to
such transaction or series of transactions.
"Disqualified Stock" means any class or series of Capital Stock that,
either by its terms, or by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (a) is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to one year after the final Stated Maturity of the Securities, (b) is redeemable
at the option of the holder thereof at any time prior to one year after such
final Stated Maturity or (c) at the option of the holder thereof, is convertible
into or exchangeable for debt securities at any time prior to one year after
such final Stated Maturity; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions therein giving holders thereof
the right to cause the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior to
the Stated Maturity of the Securities will not constitute Disqualified Stock if
the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Sections 1012 and 1013 and such Capital Stock
specifically provides that the issuer will not repurchase or redeem any of such
stock pursuant to such provision prior to the Company's repurchase of such of
the Securities as are required to be repurchased pursuant to Sections 1012 and
1013.
"Domestic Restricted Subsidiary" means a Domestic Subsidiary that is a
Restricted Subsidiary.
"Domestic Subsidiary" means any Subsidiary whose jurisdiction of
incorporation, organization or formation is the United States, any state thereof
or the District of Columbia.
"Euroclear" means the Euroclear Clearance System, or any successor
securities clearing agency.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1013.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder.
"Exchange Offer" means the exchange offer that may be effected pursuant to
the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
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"Exchange Securities" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Securities containing terms substantially
identical to the Initial Securities (except that such Exchange Securities shall
not contain terms with respect to the interest rate step-up provisions in
Section 309 of the Initial Securities and transfer restrictions in Section 307
of the Initial Securities) that are issued and exchanged for the Initial
Securities pursuant to the Registration Rights Agreement and this Indenture.
"Fair market value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between an informed and willing seller and an informed and willing buyer,
neither of which is under pressure or compulsion to complete the transaction.
"Fall-away Event" shall have the meaning specified in Section 1027.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Fixed Charges" means, for any period, without duplication, the sum of (a)
the amount that, in conformity with GAAP, would be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated statement of
operations of the Company and its Restricted Subsidiaries for such period,
including, without limitation, (i) amortization of debt discount, (ii) the net
payments (if any) pursuant to Interest Rate Agreements (including amortization
of discounts), (iii) the interest portion of any deferred payment obligation,
(iv) amortization of debt issuance costs and (v) the interest component of
Capital Lease Obligations, plus (b) cash dividends paid on Preferred Stock and
Disqualified Stock by the Company and any Restricted Subsidiary (to any Person
other than the Company and its Restricted Subsidiaries), plus (c) all interest
on any Indebtedness of any Person guaranteed by the Company or any of its
Restricted Subsidiaries, plus (d) all payments, loans or advances made pursuant
to clause (viii) or (ix) of paragraph (b) of Section 1011 in respect of interest
payments on the Indebtedness described in such clauses; provided, however, that
Fixed Charges shall not include (i) any gain or loss from extinguishment of
debt, including the write-off of debt issuance costs and (ii) the fixed charges
of a Restricted Subsidiary to the extent (and in the same proportion) that the
net income of such Subsidiary was excluded in calculating Consolidated Net
Income pursuant to clause (e) of the definition thereof for such period.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Fixed Charges for such period.
"Foreign Subsidiary" means any Subsidiary other than a Domestic
Subsidiary.
"Funding Guarantor" has the meaning set forth in Section 1301.
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"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date of Indenture.
"Global Security" shall have the meaning specified in Section 201.
"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of all or any part of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Guarantor" means the Parent or any Restricted Subsidiary that issues a
Securities Guarantee.
"Guarantor Senior Indebtedness" means, as to any Guarantor, the principal
of and premium, if any, and interest on (including interest accruing after the
filing of a petition initiating any proceeding pursuant to any bankruptcy law,
whether or not allowed) and other amounts due on or in connection with any
Indebtedness of such Guarantor (other than the Securities Guarantee made by such
Guarantor or Pari Passu Indebtedness), whether outstanding on the Closing Date
or thereafter incurred, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness will be pari passu with or
subordinate in right of payment to the Securities Guarantee. Without limiting
the generality of the foregoing, "Guarantor Senior Indebtedness" includes the
principal of and premium, if any, and interest (including interest accruing
after the occurrence of an event of default or after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law, whether or not
allowed) on all obligations of every nature of such Guarantor from time to time
owed to the Banks under the Senior Credit Facility; provided, however, that any
Indebtedness under any refinancing, refunding or replacement of the Senior
Credit Facility shall not constitute Guarantor Senior Indebtedness to the extent
that the Indebtedness thereunder is by its express terms subordinate to any
other Indebtedness of such Guarantor. Notwithstanding the foregoing, "Guarantor
Senior Indebtedness" shall not include (a) Indebtedness that is represented by
Disqualified Stock, (b) any trade payables, (c) Indebtedness of or amounts owed
by such Guarantor for compensation to employees or for services rendered to such
Guarantor, (d) any liability for foreign, federal, state, local or other taxes
owed or owing by such Guarantor, (e) Indebtedness of such Guarantor to the
Parent, the Company, a Subsidiary of the Company or any other Affiliate of the
Company or any of such Affiliate's Subsidiaries, (f) that portion of any
Indebtedness that, at the time of the incurrence, is incurred by such Guarantor
in violation of the Indenture, and (g) amounts owing under leases (other than
Capital Lease Obligations).
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"Hedging Obligations" means the obligations of any Person under (a)
Interest Rate Agreements and (b) Currency Agreements.
"Holder" means the Person in whose name a Security is, at the time of
determination, registered on the Security Register.
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (a) every obligation of such Person for money borrowed, (b)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person (other than obligations in respect to performance
bonds and letters of credit in the nature of performance bonds), (d) every
obligation of such Person issued or assumed as the deferred purchase price of
property or services, (e) every Capitalized Lease Obligation of such Person, (f)
all Disqualified Stock of such Person valued at its maximum fixed repurchase
price (including, without duplication, accrued and unpaid dividends), (g) all
obligations of such Person under or in respect of Hedging Obligations and (h)
every obligation of the type referred to in clauses (a) through (g) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has guaranteed. For purposes of this definition, the "maximum fixed
repurchase price" of any Disqualified Stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were repurchased on any date on
which Indebtedness is required to be determined pursuant to the Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock, such fair market value shall be determined in good faith by
the board of directors of the issuer of such Disqualified Stock. Notwithstanding
the foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business and any liability for federal, state or local taxes
or other taxes owed by such Person shall not be considered Indebtedness for
purposes of this definition.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company and any other
obligor hereunder or under the Securities, including the Guarantors, to pay
principal of and premium, if any, and interest on the Securities when due and
payable at Maturity, and all other amounts due or to become due under or in
connection with this Indenture, the Securities and the performance of all other
obligations to the Trustee (including all amounts due to the Trustee under
Section 606 hereof) and the Holders under this Indenture and the Securities,
according to the terms hereof and thereof.
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"Independent Investment Banker" means TD Securities (USA) Inc. or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, another
independent banking institution of national standing selected by the Company.
"Initial Period" has the meaning set forth in Section 1403.
"Initial Securities" has the meaning stated in the first recital of this
Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Agreements" means any interest rate protection agreements
and other types of interest rate hedging agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements)
and other related agreements designed to protect against or manage exposure to
fluctuations in interest rates and either (a) entered into in the ordinary
course of business or (b) relating to the Indebtedness permitted under the
Indenture.
"Investment" in any Person means (a) any direct or indirect advance, loan
or other extension of credit or capital contribution (by means of any transfer
of cash or other property to others or any payment for property or services for
the account or use of others) to, or any purchase, acquisition or ownership of,
Capital Stock, Indebtedness or other securities issued by such Person, the
acquisition (by purchase or otherwise) of all or substantially all of the
business or assets of such Person, or the making of any investment of cash or
other property in such Person, (b) the designation of any Restricted Subsidiary
as an Unrestricted Subsidiary, (c) the transfer of any assets or properties from
the Company or a Restricted Subsidiary to an Unrestricted Subsidiary, other than
the transfer of assets or properties made in the ordinary course of business and
(d) the fair market value of the Capital Stock (or any other Investment), held
by the Company or any of its Restricted Subsidiaries, of (or in) any Person that
has ceased to be a Restricted Subsidiary. Investments exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
"Investment Grade" means a rating of the Securities by both S&P and
Xxxxx'x, each such rating being in one of such agency's four highest generic
rating categories that signifies investment grade (i.e. BBB- (or the equivalent)
or higher by S&P and Baa3 (or the equivalent) or higher by Moody's); provided,
in each case, such ratings are publicly available; provided further that in the
event Moody's or S&P is no longer in existence, for purposes of determining
whether the Securities are rated "Investment Grade," such organization may be
replaced by a nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) designated by the Company, notice of which
designation shall be given to the Trustee.
"Xxxxxxx" means Xxxxxxx Inc., a corporation organized under the laws of
Canada.
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"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"NationsBank Facility" means either (a) the working capital facility made
available pursuant to the letter agreement dated March 31, 1998 between
NationsBank of Texas, N.A., as lender, and the Company, as borrower or (b) any
other agreement or agreements between the Company or any Restricted Subsidiary
and a financial institution or institutions providing for the making of loans or
advances on a revolving basis and/or the issuance of letters of credit and/or
the creation of bankers' acceptances to fund the Company's general corporate
requirements.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or cash equivalents, including payments in respect
of deferred payment obligations, but only as and when received, in the form of,
or stock or other assets when disposed of for, cash or Cash Equivalents (except
to the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary), net of (a) brokerage commissions and
other fees and expenses (including fees and expenses of legal counsel,
accountants and investment banks) related to such Asset Sale, (b) provisions for
all taxes payable or required to be accrued in accordance with GAAP as a result
of such Asset Sale, (c) payments made to retire Indebtedness where payment of
such Indebtedness is secured by a Lien on the assets that are the subject of
such Asset Sale, (d) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the assets
that are subject to the Asset Sale, (e) appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the seller after such Asset Sale, including pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale and (f) all distributions and other payments
made to minority interest holders in Restricted Subsidiaries or joint ventures
as a result of such Asset Sale.
"Non-Subsidiary Guarantors" means Subsidiaries which are not Subsidiary
Guarantors.
"Offering" means the offering of 9 1/4% Senior Subordinated Notes Due 2008
by the Company.
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"Officers' Certificate" means a certificate signed by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment, redemption
or purchase money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article XII; and
(d) Securities which have been paid pursuant to Section 308 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right
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so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
"Parent" means Xxxxxxx Environmental Services, Inc., a Delaware
corporation until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Parent" shall mean such
successor Person.
"Parent IRBs" means the (a) Tooele County, Utah Pollution Control
Refunding Revenue Bonds 1997 Series A, par amount $45.7 million, which bear
interest at a rate equal to 7.55% per annum and mature on July 1, 2027 and (b)
California Pollution Control Financing Authority 6.7% Pollution Control
Refunding Revenue Bonds 1997 Series A, par amount $19.5 million which bear
interest at a rate equal to 6.7% per annum and mature on July 1, 2007.
"Parent Promissory Note" means the $60 million promissory note of the
Parent issued to Westinghouse Electric Corporation on May 15, 1997, which is due
and payable on May 15, 2003.
"Pari Passu Indebtedness" means any Indebtedness of the Company or any
Guarantor, whether outstanding at the date of this Indenture or incurred
thereafter, that ranks pari passu in right of payment with the Securities or any
Securities Guarantee, as the case may be.
"Paying Agent" means The Bank of Nova Scotia Trust Company of New York and
any successor (including the Company acting as Paying Agent) authorized by the
Company to pay the principal of and premium, if any, or interest on any
Securities on behalf of the Company.
"Payment Blockage Period" has the meaning set forth in Section 1403.
"Permitted Holder" means Xxxxxxx, any successor thereto, and any of their
Affiliates.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted Subsidiary under
the Senior Credit Facility in an aggregate principal amount at any one
time outstanding not to exceed $1,775,000,000, less (x) any amounts
applied to the permanent reduction of any term loans under the Senior
Credit Facility and (y) any amounts applied to the permanent reduction of
the Senior Credit Facility pursuant to Section 1013;
(ii) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Closing Date, other than Indebtedness described under
clause (i) above;
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(iii) Indebtedness owed by the Company to any Wholly-Owned
Restricted Subsidiary or owed by any Restricted Subsidiary to the Company
or a Wholly-Owned Restricted Subsidiary (provided that such Indebtedness
is held by the Company or such Wholly-Owned Restricted Subsidiary);
provided, however, that if the Company is the obligor on such
Indebtedness, such Indebtedness is unsecured and subordinated in all
respects to the Company's obligations under the Notes and provided,
further, however, that if any such Wholly-Owned Restricted Subsidiary
ceases to be (for any reason) a Wholly-Owned Restricted Subsidiary, then
this clause (iii) shall no longer be applicable to Indebtedness owed by
the Company or any Restricted Subsidiary to such Restricted Subsidiary
that was formerly a Wholly-Owned Restricted Subsidiary;
(iv) Indebtedness represented by the Securities (other than the
Additional Securities) and the Securities Guarantees;
(v) Indebtedness of the Company or any Restricted Subsidiary in
respect of Hedging Obligations incurred in the ordinary course of
business;
(vi) Capital Lease Obligations of the Company or any Restricted
Subsidiary, provided that the aggregate amount of Indebtedness under this
clause (vi) does not exceed $15,000,000 at any one time outstanding;
(vii) Indebtedness of the Company or any Restricted Subsidiary under
purchase money mortgages or secured by purchase money security interests
so long as (x) such Indebtedness is not secured by any property or assets
of the Company or any Restricted Subsidiary other than the property and
assets so acquired and (y) such Indebtedness is created within 90 days of
the acquisition of the related property; provided that the aggregate
amount of Indebtedness under this clause (vii) does not exceed $15,000,000
at any one time outstanding;
(viii) guarantees by the Company or any Restricted Subsidiary of
Indebtedness that was permitted to be incurred by the provisions of
Section 1010, and, with respect to guarantees by any Restricted
Subsidiary, made in accordance with the provisions of Section 1020;
(ix) Indebtedness of the Company or any Restricted Subsidiary, not
otherwise permitted by the first paragraph under Section 1010 and any
other clause of this definition, in an aggregate principal amount not to
exceed an amount equal to 5% of the total assets of the Company and its
Restricted Subsidiaries (on a consolidated basis determined in accordance
with GAAP);
(x) Indebtedness of one or more Foreign Subsidiaries under one or
more credit facilities in an aggregate principal amount at any one time
outstanding not to exceed $50,000,000;
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(xi) Indebtedness of the Company or any Restricted Subsidiary under
the NationsBank Facility in an aggregate principal amount at any one time
outstanding not to exceed $25,000,000; and
(xii) Any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
outstanding Indebtedness incurred pursuant to clause (ii) and (iv) above,
including any successive refinancings thereof, so long as (A) any such new
Indebtedness is in a principal amount that does not exceed the principal
amount so refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined
by the Company as necessary to accomplish such refinancing, plus the
amount of the expenses of the Company reasonably estimated to be incurred
in connection with such refinancing, (B) in the case of any refinancing of
Subordinated Indebtedness of the Company or any Guarantors, such new
Indebtedness is subordinated to the Notes or the Guarantees, as the case
may be, at least to the same extent as the Indebtedness being refinanced
and (C) such refinancing Indebtedness has a Weighted Average Life equal to
or greater than the Weighted Average Life of the Indebtedness being
refinanced and has a final Stated Maturity no earlier than the final
Stated Maturity of the Indebtedness being refinanced.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents.
(b) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment such other Person (i)
becomes a Restricted Subsidiary or (ii) is merged or consolidated with or
into, or transfers or conveys all or substantially all of its assets to,
the Company or a Restricted Subsidiary.
(c) Investments by the Company or any of the Restricted Subsidiaries
in any one of the other of them.
(d) Investments existing on the Closing Date.
(e) Investments made as a result of the receipt of non-cash
consideration in an Asset Sale permitted under Section 1013.
(f) Investments consisting of loans and advances to officers and
employees of the Company or any of its Restricted Subsidiaries for
reasonable travel, relocation and business expenses in the ordinary course
of business.
(g) Investments the payment for which consists exclusively of
Capital Stock (exclusive of Disqualified Stock) of the Company.
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(h) Other Investments that do not exceed in the aggregate at any one
time outstanding the greater of (i) $50,000,000 or (ii) an amount equal to
1% of the total assets of the Company and its Restricted Subsidiaries (on
a consolidated basis determined in accordance with GAAP).
"Permitted Liens" means (a) Liens in existence on the date on which the
Securities achieve an Investment Grade rating; (b) any Lien on any properties or
assets of the Company or any Restricted Subsidiary acquired (including by way of
merger or consolidation) by the Company or any Restricted Subsidiary after the
date on which the Securities achieve an Investment Grade rating, which Lien is
created, incurred or assumed contemporaneously with such acquisition, or within
270 days thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or any Lien upon any properties or assets of
the Company or any Restricted Subsidiary acquired after the date of this
Indenture existing at the time of such acquisition (whether or not assumed by
the Company or any Restricted Subsidiary), provided that every such Lien
referred to in this clause (b) shall attach only to the properties or assets of
the Company or any Restricted Subsidiary so acquired; (c) any Lien on any
properties or assets of the Company or any Restricted Subsidiary in favor of the
Company or any Restricted Subsidiary; (d) any Lien on properties or assets of
the Company or any Restricted Subsidiary incurred in connection with the
issuance of tax-exempt governmental obligations (including, without limitation,
industrial revenue bonds and similar financings); (e) any Lien granted by any
Restricted Subsidiary on its properties or assets to the extent such Lien is not
prohibited by any agreement to which such Restricted Subsidiary is subject as of
the date of the Indenture; (f) any Lien securing Indebtedness under the Senior
Credit Facility, the NationsBank Facility, the C$35,000,000 credit facility made
available pursuant to the letter agreement, dated as of April 3, 1998, between
Xxxxxxx Environmental Services (Canada) Ltd., as borrower and Toronto-Dominion
Bank, as lender, as such agreement may be amended, modified or supplemented from
time to time, and Hedging Obligations entered into in connection with the Senior
Credit Facility; and (g) any renewal or substitution for any Lien permitted by
any of the preceding clauses (a) through (g), including any Lien securing
reborrowing of amounts previously secured within 270 days of the repayment
thereof, provided that no such renewal or substitution shall extend to any
properties or assets of the Company or any Restricted Subsidiary other than the
properties or assets of the Company or any Restricted Subsidiary covered by the
Lien being renewed or substituted.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PIK Subordinated Debenture" means the Parent's $350 million 5%
subordinated convertible pay-in-kind debenture, which is due and payable on May
15, 2009.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security;
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and, for the purposes of this definition, any Security authenticated and
delivered under Section 308 in exchange for a mutilated security or in lieu of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt as
the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, or other equivalents (however
designated) of such Person's preferred or preference stock, whether now
outstanding or issued after the Closing Date, and including, without limitation,
all classes and series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning specified in Section 202.
"Proceeding" has the meaning set forth in Section 1402.
"Public Equity Offering" means an offer and sale of common stock (which is
Qualified Stock) of the Company or Parent pursuant to a registration statement
that has been declared effective by the Commission pursuant to the Securities
Act (other than a registration statement on Form S-8 or otherwise relating to
equity securities issuable under any employee benefit plan of the Company or
Parent).
"Qualified Equity Interest" means any Qualified Stock and all warrants,
options or other rights to acquire Qualified Stock (but excluding any debt
security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital Stock of such
Person, other than Disqualified Stock.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registrar" means The Bank of Nova Scotia Trust Company of New York and
any successor authorized by the Company to act as Registrar.
"Registration Rights Agreement" means the Registration Rights Agreement
between the Company, the Guarantors and the Initial Purchasers named therein,
dated as of May 29, 1998 relating to the Securities.
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"Registration Statement" means the Registration Statement as defined in
the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15 or November 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section 201.
"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Payment" means any of the following:
(a) the declaration or payment of any dividend on, or the making of
any distribution to holders of, any shares of the Capital Stock of the
Company or any Restricted Subsidiary other than (i) dividends or
distributions payable solely in Qualified Equity Interests or (ii)
dividends or distributions by a Restricted Subsidiary payable to the
Company or another Restricted Subsidiary or (iii) pro rata dividends or
distributions on common stock of a Restricted Subsidiary held by minority
stockholders, provided that such dividends do not in the aggregate exceed
the minority stockholders' pro rata share of such Restricted Subsidiary's
net income from the first day of the Company's fiscal quarter during which
the Closing Date occurs;
(b) the purchase, redemption or other acquisition or retirement for
value, directly or indirectly of any shares of Capital Stock (or any
options, warrants or other rights to acquire shares of Capital Stock) of
(i) the Company or any Unrestricted Subsidiary or (ii) any Restricted
Subsidiary held by any Affiliate of the Company (other than, in either
case, any such Capital Stock owned by the Company or any of its Restricted
Subsidiaries);
(c) the making of any principal payment on, or the repurchase,
redemption, defeasance or other acquisition or retirement for value, prior
to any scheduled principal payment, sinking fund payment or maturity, of
any Subordinated Indebtedness; or
(d) the making of any Investment (other than a Permitted Investment)
in any Person.
"Restricted Period" has the meaning set forth in Section 306.
"Restricted Subsidiary" means any Subsidiary other than an Unrestricted
Subsidiary.
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"Rule 144A" means Rule 144A under the Securities Act.
"Safety-Kleen" means Safety-Kleen Corp., a Wisconsin corporation.
"Safety-Kleen Acquisition" means the Company's acquisition of all of the
capital stock of Safety-Kleen through a tender offer in April 1998 and the
acquisition of the remaining capital stock of Safety-Kleen through a merger
prior to or simultaneously with the Closing Date.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
properties or assets of the Company and/or such Restricted Subsidiary (except
for temporary leases for a term, including any renewal thereof, of not more than
three years and except for leases between the Company and any Restricted
Subsidiary, between any Restricted Subsidiary and the Company or between
Restricted Subsidiaries), which properties or assets have been or are to be sold
or transferred by the Company or such Restricted Subsidiary to such Person with
the intention of taking back a lease of such properties or assets.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Securities" shall
include any Exchange Securities to be issued and exchanged for any Initial
Securities in accordance with the Exchange Offer as provided for in the
Registration Rights Agreement and this Indenture. From and after the issuance of
any Additional Securities pursuant to Section 312 (but, not for purposes of
determining whether such issuance is permitted hereunder), "Securities" shall
include such Additional Securities for purposes of this Indenture, and all
Initial Securities, Exchange Securities and Additional Securities shall vote
together as one series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations thereunder.
"Securities Guarantee" means a guarantee of the Notes by the Parent and
one or more Subsidiary Guarantors in accordance with the terms of this
Indenture.
"Securities Payment" has the meaning set forth in Section 1402.
"Security Register" has the meaning set forth in Section 305.
"Senior Credit Facility" means the credit agreement dated as of April 3,
1998 among the Company, the Banks and Toronto Dominion Bank, as agent, as such
agreement may be amended, renewed, extended, substituted, replaced, restated,
refinanced, restructured, supplemented or otherwise modified from time to time
(including, without limitation, any successive amendments, renewals, extensions,
substitutions, replacements, restatements,
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refinancings, restructuring, supplements or other modifications of the
foregoing); provided that with respect to any agreement providing for the
refinancing of Indebtedness under the Senior Credit Facility, such agreement
shall be the Senior Credit Facility for the purposes of this definition only if
a notice to that effect is delivered by the Company to the Trustee and there
shall be at any time only one instrument that is the Senior Credit Facility
under the Indenture.
"Senior Credit Facility Agent" means Toronto Dominion Bank as agent for
the Banks under the Senior Credit Facility or any successor thereto as "agent"
identified in written notice to the Trustee given by the predecessor agent.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law, whether or not
allowed) and other amounts due on or in connection with any Indebtedness of the
Company (other than the Securities or Pari Passu Indebtedness), whether
outstanding on the Closing Date or thereafter incurred, unless, in the case of
such Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness will be
pari passu with or subordinate in right of payment to the Securities. Without
limiting the generality of the foregoing, "Senior Indebtedness" includes the
principal of and premium, if any, and interest (including interest accruing
after the occurrence of an event of default or after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law, whether or not
allowed) on all obligations of every nature of the Company from time to time
owed to the Banks under the Senior Credit Facility, provided, however, that any
Indebtedness under any refinancing, refunding or replacement of the Senior
Credit Facility shall not constitute Senior Indebtedness to the extent that the
Indebtedness thereunder is by its express terms subordinate to any other
Indebtedness of the Company. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (a) Indebtedness that is represented by
Disqualified Stock, (b) any trade payables, (c) Indebtedness of or amounts owed
by the Company for compensation to employees or for services rendered to the
Company, (d) any liability for foreign, federal, state, local or other taxes
owed or owing by the Company, (e) Indebtedness of the Company to a Subsidiary of
the Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries, (f) that portion of any Indebtedness that, at the time of the
incurrence, is incurred by the Company in violation of the Indenture and (g)
amounts owing under leases (other than Capital Lease Obligations).
"Senior Nonmonetary Default" has the meaning set forth in Section 1403.
"Senior Payment Default" has the meaning set forth in Section 1403.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
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"Significant Subsidiary" means any Restricted Subsidiary of the Company
that would be a "Significant Subsidiary" of the Company within the meaning of
Rule 1-02 under Regulation S-K promulgated by the Commission as such Rule is in
effect on the date of the Indenture.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, and its successors.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable and, when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness or
any installment of interest thereon is due and payable, and will not, in either
case, include any contingent obligations to repay, redeem or repurchase any such
interest or principal prior to the date originally scheduled for the payment
thereof.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated as of
February 6, 1997 among Xxxxxxx Environmental Services, Inc., Xxxxxxx and Xxxxxxx
Transportation, Inc.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor that is subordinated in right of payment to the Securities or the
Securities Guarantee issued by such Guarantor, as the case may be.
"Subsidiary" means any Person a majority of the equity ownership or Voting
Stock of which is at the time owned, directly or indirectly, by the Company
and/or one or more Subsidiaries of the Company.
"Subsidiary Guarantee" means a guarantee of the Securities by a Restricted
Subsidiary in accordance with the provisions of the Indenture.
"Subsidiary Guarantor" means, initially, each of the Company's Restricted
Subsidiaries listed on Schedule I hereto, and thereafter, any Restricted
Subsidiary that issues or has issued a Securities Guarantee pursuant to or as
required by the provisions of this Indenture.
"Surviving Entity" has the meaning set forth in Section 801.
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"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary in accordance with Section
1018 and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" has the meaning set forth in Section 1204.
"U.S. Physical Securities" has the meaning set forth in Section 201.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Weighted Average Life" means, as of the date of determination with
respect to any Indebtedness or Disqualified Stock, the quotient obtained by
dividing (a) the sum of the products of (i) the number of years from the date of
determination to the date or dates of each successive scheduled principal or
liquidation value payment of such Indebtedness or Disqualified Stock,
respectively, multiplied by (ii) the amount of each such principal or
liquidation value payment by (b) the sum of all such principal or liquidation
value payments.
"Wholly-Owned Domestic Subsidiary" means any Domestic Subsidiary, all of
the outstanding Capital Stock (other than directors' qualifying shares) of which
is owned, directly or indirectly, by the Company.
"Wholly-Owned Foreign Restricted Subsidiary" means any Foreign Subsidiary
that is a Restricted Subsidiary, all of the outstanding Capital Stock (other
than directors' qualifying shares of such Foreign Subsidiary required to be
owned by foreign nationals pursuant to applicable law) of which is owned,
directly or indirectly, by the Company.
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary, all
of the outstanding Capital Stock (other than directors' qualifying shares or
shares of Foreign Restricted Subsidiaries required to be owned by foreign
nationals pursuant to applicable law) of which is owned, directly or indirectly,
by the Company.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
such Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to Section
1008(a)) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, 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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company and/or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters
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upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company and/or any such Guarantor stating that the information
with respect to such factual matters is in the possession of the Company and/or
any such Guarantors, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in Person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company or the Guarantors. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee, the Company and the
Guarantors, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company or any Guarantor shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company or any such Guarantor (as the case may be),
may, at its option, by or pursuant to a Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
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the Company or any such Guarantor (as the case may be) shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
and/or the Guarantors in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) For all purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
SECTION 105. Notices, etc., to Trustee, Company or Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Company or any Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing or mailed, first-class postage prepaid, to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Finance Department, or
sent by facsimile to the Trustee at (000) 000-0000 (with receipt confirmed
by telephone at (000) 000-0000); or
(b) the Company by the Trustee, any Holder or any Guarantor shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Xxxxx Xxxxxx, Esq., or sent by facsimile to the Company
at (000) 000-0000 (with receipt confirmed by telephone at (000) 000-0000),
or at any other address or facsimile number previously furnished in
writing to the Trustee by the Company; or
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(c) any Guarantor by the Company, any other Guarantor, the Trustee
or any Holder shall be sufficient for any purpose hereunder (unless
otherwise herein expressly provided) if in writing, and mailed, first
class postage prepaid, to such Guarantor addressed to it at c/o LES, Inc.,
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx
Xxxxxx, Esq., or sent by facsimile to such Guarantor at (000) 000-0000
(with receipt confirmed by telephone at (000) 000-0000), or at any other
address or facsimile number previously furnished in writing to the Trustee
by such Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 107. Conflict of any Provision of Indenture with Trust Indenture
Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantors shall bind its respective successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent, any
Securities Registrar and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York. Upon the issuance of the
Exchange Securities, if any, or the effectiveness of the Exchange Offer
Registration Statement or, under certain circumstances, the effectiveness of the
Shelf Registration Statement, this Indenture shall be subject to the provisions
of the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change of Control Payment Date or Asset Sale Purchase Date
with respect to any Security or other day on which principal, premium or
interest in respect or the Securities is due, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of principal (or premium, if any) or interest need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change of Control Purchase Date or Asset Sale Purchase
Date; provided that no interest shall accrue for the period from and after such
Interest Payment Date or other such day, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Maturity, Change in Control Payment Date or Asset Sale Purchase Date, as the
case may be, to the next succeeding Business Day.
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ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be in
substantially the form annexed hereto as Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Securities, as evidenced by their
execution of such Securities.
The terms and provisions contained in the form of the Securities annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Initial Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities without
interest coupons substantially in the form set forth in Exhibit A (collectively,
the "Restricted Global Security") deposited with, or on behalf of, the
Depositary or with the Trustee, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Securities offered and sold in reliance on Regulation S shall be
issued initially in the form of one or more global Securities in fully
registered form without interest coupons substantially in the form set forth in
Exhibit A (collectively, the "Regulation S Global Security" and, together with
the Restricted Global Security, the "Global Securities" or each individually, a
"Global Security"). The Regulation S Global Securities will be registered in the
name of a nominee of DTC and deposited with the Trustee on behalf of the
Purchasers, for the accounts of Euroclear and CEDEL. The aggregate principal
amount of the Regulation S Global Security may from time to time be increased or
decreased by adjustments made on the records of the Depositary or its nominee,
or of the Trustee, as
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custodian for the Depositary or its nominee, as hereinafter provided. Until and
including the 40th day after the date of this Indenture, beneficial interests in
the Regulation S Global Security may be held only through Euroclear or CEDEL,
unless delivery is made through the Restricted Global Security in accordance
with the certification requirements provided in this Indenture.
If DTC is at any time unwilling or unable to continue as a depositary, or
if, in the case of the Regulation S Global Security held for an account of
Euroclear or CEDEL, Euroclear or CEDEL, as the case may be, is closed for
business for 14 continuous days or announces an intention to cease or
permanently ceases business, the Company will issue certificates for the
Securities in definitive, fully registered, non-global form without interest
coupons in exchange for the Regulation S Global Security or Restricted Global
Security, as the case may be. In all cases, certificates for Securities
delivered in exchange for any Global Security or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by DTC.
In the case of certificates for Securities in non-global form issued in
exchange for the Regulation S Global Security or Restricted Global Security,
such certificates will bear the first legend appearing under Section 202 of this
Indenture (unless the Company determines otherwise in accordance with applicable
law). The holder of a Security in non-global form may transfer such Security,
subject to compliance with the provisions of such legend, by surrendering it at
the office or agency maintained by the Company for such purpose in the Borough
of Manhattan, The City of New York, which initially will be the office of the
Trustee.
Initial Securities offered and sold other than as global securities shall
be issued in the form of permanent certificated Securities in registered form in
substantially the form set forth in Exhibit A (the "U.S. Physical Securities").
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, each certificate representing a
Security shall contain a legend substantially to the following effect (the
"Private Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM
THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE
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REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (3) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES AND OTHER JURISDICTIONS OF THE UNITED STATES.
Each Global Security, whether or not an Initial Security, shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
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ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms.
The initial aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $325,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 307, 308, 906, 1012, 1013 or 1108, pursuant to an Exchange Offer or
pursuant to Section 312. The Company may also issue up to $75,000,000 aggregate
principal amount of additional Securities having identical terms and conditions
to the Initial Securities, subject to compliance with the covenants contained
herein (the "Additional Securities").
The Initial Securities shall be known and designated as the "9 1/4% Senior
Subordinated Notes due 2008" and the Exchange Securities shall be known and
designated as the "9 1/4% Exchange Senior Subordinated Notes due 2008." Their
Stated Maturity shall be June 1, 2008, and they shall bear interest at the rate
of 9 1/4% per annum from May 29, 1998, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable semiannually
in arrears on June 1 and December 1 in each year, commencing December 1, 1998,
until the principal thereof is paid or duly provided for, to the Person in whose
name the Security (or any predecessor Security) is registered at the close of
business on the May 15 or November 15 next preceding such Interest Payment Date.
The principal of and premium, if any, and interest on the Securities shall
be payable, and the Securities shall be exchangeable and transferable, at the
office or agency of the Company in The City of New York maintained for such
purposes, (which initially shall be the office of the Trustee located at Xxx
Xxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10006) or, at the option of the
Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register;
provided, however, that all payments with respect to the U.S. Global Securities,
as well as Physical Securities the Holders of which have given wire transfer
instructions to the Trustee (or other Paying Agent) by the Regular Record Date
for such payment, will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.
Initial Securities that remain outstanding after the consummation of the
Exchange Offer and Exchange Securities issued in connection with the Exchange
Offer will be treated as a single class of securities under this Indenture.
The Securities shall be redeemable as provided in Article XI.
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SECTION 302. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman,
its President or a Vice President. The signature of any of these officers on the
Securities may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities directing the Trustee to authenticate the
Securities and certifying that all conditions precedent to the issuance of
Securities contained herein have been fully complied with, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities. On Company Order, the Trustee shall authenticate for original issue
Exchange Securities in an aggregate principal amount not to exceed $325,000,000
plus the aggregate principal amount of any Additional Securities issued;
provided that such Exchange Securities shall be issuable only upon the valid
surrender for cancellation of Securities of a like aggregate principal amount in
accordance with an Exchange Offer pursuant to the Registration Rights Agreement
and a Company Order for the authentication of such securities certifying that
all conditions precedent to the issuance have been complied with (including the
effectiveness of a registration statement related thereto). In each case, the
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company that it may reasonably request in connection with such
authentication of Securities. Such order shall specify the amount of Securities
to be authenticated and the date on which the original issue of Initial
Securities or Exchange Securities is to be authenticated.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
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In case the Company, pursuant to Article VIII, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article VIII, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Request of
the successor Person, shall authenticate and deliver Securities as specified in
such request for the purpose of such exchange. If Securities shall at any time
be authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new name.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in
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which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as "Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange (including an
exchange of Initial Securities for Exchange Securities), the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive; provided that no exchange
of Initial Securities for Exchange Securities shall occur until an Exchange
Offer Registration Statement, Shelf Registration Statement or other registration
statement with respect to such Exchange Security shall have been declared
effective by the Commission and that the Initial Securities to be exchanged for
the Exchange Securities shall be canceled by the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1012, 1013 or 1108 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of 15 Business
Days before the selection of Securities to be redeemed under Section 1104 and
ending at the close of business
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on the day of such mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding anything to the contrary contained herein, the Trustee
shall have no duty whatsoever to monitor Federal or State securities laws other
than to collect the certificates required herein.
SECTION 306. Book-Entry Provisions for Restricted Global Security.
(a) The Global Security initially shall (i) be registered in the name of
Cede & Co., as nominee of the Depositary, (2) be deposited with, or on behalf
of, the Depositary or with the Trustee, as custodian for such Depositary, and
(iii) bear legends as set forth in Section 202.
Beneficial interests in any Restricted Global Security may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Security in accordance with the transfer restrictions set
forth in the legends as set forth in Section 202; provided, however, that prior
to the expiration of the Restricted Period, beneficial interests in the
Regulation S Global Security may only be held through Euroclear or CEDEL or
indirectly through organizations which are participants in such systems. After
the expiration of the Restricted Period (but not earlier), investors in the
Regulation S Global Security may also hold such interests through organizations
other than Euroclear or CEDEL that are participants in the Depositary's system.
All interests in a Global Security, including those held through Euroclear or
CEDEL, may be subject to the procedures and requirements of the Depositary.
Those interests held through Euroclear and CEDEL will be subject to the
procedures and requirements of such system. As used herein, the term "Restricted
Period" means the period of 40 consecutive days beginning on and including the
first day after the later of (i) the day that TD Securities (USA) Inc. advises
the Company and the Trustee of the day on which the Initial Securities or
Additional Securities, as the case may be, are first offered to persons other
than distributors (as defined in Regulation S) and (ii) the original issue date
of the Initial Securities or Additional Securities, as the case may be.
(b) Transfers of any Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in any Global Security
may be transferred in accordance with the rules and procedures of the Depositary
and the provisions of Section 307.
Unless (i) the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for a Global Security or ceases to be a
"Clearing Agency" registered under the Exchange Act or announces an intention
permanently to cease business or does in fact do so and a successor Depositary
is not appointed by the Company within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing with respect to a Global
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Security or (iii) in the case of a Global Security held for the account of
Euroclear or CEDEL, Euroclear or CEDEL, as the case may be, is closed for
business for 14 continuous Business Days or announces an intention to cease or
permanently ceases business, owners of beneficial interests in a Global Security
shall not be entitled to have any portions of such Global Security registered in
their names, shall not receive or be entitled to receive physical delivery of
Securities in definitive form and shall not be considered the owners or holders
of the Global Security.
(c) Securities issued in exchange for a Global Security or any portion
thereof pursuant to the last sentence of subsection (b) of this Section shall be
issued in definitive, fully registered form, without interest coupons, shall
have an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Registrar. With regard
to any Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and make available for delivery the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative
thereof. In the event of the occurrence of any of the events specified in the
last sentence of subsection (b) of this Section 306, the Company will promptly
make available to the Trustee a reasonable supply of certificated Securities in
definitive form.
(d) Except as otherwise set forth in this Indenture or a Global Security,
owners of beneficial interests in the Securities evidenced by a Global Security
will not be entitled to any rights under this Indenture with respect to such
Global Security, and the Depositary or its nominee may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
and Holder of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any such
agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between
the Depositary or its nominee and such owners of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary or its nominee as Holder of any Security.
SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement the following
provisions shall apply:
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(a) Restricted Global Security to Regulation S Global Security. If, at any
time, an owner of a beneficial interest in a Restricted Global Security
deposited with the Depositary (or the Trustee as custodian for the Depositary)
wishes to transfer its interest in such Restricted Global Security to a Person
who is required or permitted to take delivery thereof in the form of an interest
in a Regulation S Global Security, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Regulation S Global Security as provided in this
Section 307(a). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest in
the applicable Restricted Global Security to be exchanged, (2) a written order
given in accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary and the Euroclear or CEDEL
account (if applicable) to be credited with such increase, and (3) a certificate
substantially in the form of Exhibit B hereto given by the owner of such
beneficial interest, the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount of the applicable
Restricted Global Security and to increase or cause to be increased the
aggregate principal amount of the applicable Regulation S Global Security by the
principal amount of the beneficial interest in the Restricted Global Security to
be exchanged, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S Global
Security equal to the reduction in the aggregate principal amount of the
applicable Restricted Global Security, and to debit, or cause to be debited,
from the account of the Person making such exchange or transfer the beneficial
interest in the Restricted Global Security that is being exchanged or
transferred.
(b) Regulation S Global Security to Restricted Global Security. If, at any
time, an owner of a beneficial interest in a Regulation S Global Security
deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes to transfer its interest in such Regulation S Global Security
to a Person who is required or permitted to take delivery thereof in the form of
an interest in a Restricted Global Security, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Global Security, as provided in
this Section 307(b). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member, directing the
Trustee, as Registrar, to credit or cause to be credited a beneficial interest
in the Restricted Global Security equal to the beneficial interest in the
Regulation S Global Security to be exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
participant account of the Depositary to be credited with such increase and (3)
if such transfer is requested prior to the expiration of the Restricted Period,
a certificate in the form of Exhibit C attached hereto given by the owner of
such beneficial interest, the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount of
such Regulation S Global Security and to increase or cause to be increased the
aggregate principal amount of the applicable Restricted Global Security by the
principal amount of the beneficial interest in the Regulation S Global Security
to be exchanged, and the Trustee, as Xxxxxxxxx,
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shall instruct the Depositary, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the applicable Restricted Global Security equal to the
reduction in the aggregate principal amount of such Regulation S Global Security
and to debit or cause to be debited from the account of the Person making such
transfer the beneficial interest in the Regulation S Global Security that is
being transferred. After the expiration of the Restricted Period, the
certificate described in clause (3) above shall no longer be required to effect
transfers pursuant to this Section 307(b).
(c) Transfers of U.S. Physical Securities for Restricted Global Security
or Regulation S Global Security. If the holder of a U.S. Physical Security
wishes at any time to transfer such holder's U.S. Physical Security to a Person
who wishes to take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security or the Restricted Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in accordance with
the provisions of this Section 307(c). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Security or Restricted Global Security, as
the case may be, in a principal amount equal to that of the U.S. Physical
Securities to be so transferred, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the participant
account of the Depositary (and the Euroclear or CEDEL account, as applicable) to
be credited with such beneficial interest and (3) a certificate in substantially
the form set forth in Exhibit D, given by the holder of such U.S. Physical
Security, the Trustee, as Security Registrar, shall instruct the Depositary to
increase the principal amount of the Regulation S Global Security or the
Restricted Global Security, as the case may be, by the principal amount of the
U.S. Physical Security to be so transferred, and to cancel or cause to be
canceled such U.S. Physical Security.
(d) Restricted Global Security or U.S. Physical Security to Regulation S
Global Security After Two Years. If the holder of a beneficial interest in a
Restricted Global Security or U.S. Physical Security wishes at any time after
the second anniversary of the date of original issuance of the Securities to (A)
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Security or (B) to
exchange such interest for a beneficial interest in a Regulation S Global
Security, such transfer or exchange may be effected, subject to the Applicable
Procedures, only in accordance with this Section 307(d). Upon receipt by the
Trustee of (1) in the case of a transfer or exchange of an interest in the
Restricted Global Security or a U.S. Physical Security, instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited to a beneficial interest in the
Regulation S Global Security in an amount equal to that the beneficial interest
in the Restricted Global Security to be so transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary (and, if
applicable, the Euroclear or CEDEL account, as the case may be) to be credited
with such beneficial interest and (3) a certificate substantially in the
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form of Exhibit E hereto given by the holder of such beneficial interest, the
Trustee, as Registrar, shall (i) in the case of a transfer or exchange of an
interest in the Restricted Global Security, instruct the Depositary to reduce
the principal amount of the Restricted Global Security, and to increase the
principal amount of the Regulation S Global Security, by the principal amount of
the beneficial interest in the Restricted Global Security to be so transferred
or exchanged, and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S Global
Security having a principal amount equal to the amount by which the principal
amount of the Restricted Global Security was reduced upon such transfer or
exchange or (ii) in the case of a transfer or exchange of a U.S. Physical
Security, cancel such U.S. Physical Security and increase the principal amount
of the Regulation S Global Security accordingly.
(e) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain as required by law copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company in The City of New York maintained for such purposes
(which initially shall be the office of the Trustee located at Xxx Xxxxxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10006) pursuant to Section 1002 or, at the
option of the Company, interest may be paid by check mailed to the address of
the Person entitled thereto pursuant to 310 as such address appears in the
Security Register; provided that all payments with respect to Global Securities
and Physical Securities the Holders of which have given wire transfer
instructions to the Trustee (or other Paying Agent) by the Regular Record Date
shall be required to be made by wire transfer of immediately available funds to
the accounts specified by the holders thereof.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon
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the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date, and in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given in the manner provided for in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
If the Company shall be required to pay any additional interest pursuant
to the terms of the Registration Rights Agreement, it shall deliver an Officers'
Certificate to the Trustee setting forth the new interest rate and the period
for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the due presentment of a Security for registration of transfer,
the Company, each Guarantor, the Trustee and any agent of the Company, such
Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 309) interest
on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Guarantors, the Trustee or any
agent of the Company, such Guarantor or the Trustee shall be affected by notice
to the contrary.
SECTION 311. Cancellation.
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All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that cancelled Securities be returned
to it.
SECTION 312. Issuance of Additional Securities. The Company may, subject
to Article X of this Indenture, issue up to $75,000,000 aggregate principal
amount of Additional Securities. Any Additional Securities will be part of the
same issue as the Securities offered hereby and will vote on all matters with
the Securities offered hereby.
SECTION 313. CUSIP and CINS Numbers. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" and "CINS" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 314. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
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This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of the
Securities, as expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(i) all the Securities theretofore authenticated and delivered
(other than mutilated, destroyed, lost or stolen Securities that
have been replaced or paid as provided in Section 308 and Securities
that have been subject to defeasance under Article XII) have been
delivered to the Trustee for cancellation; or
(ii) all Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable,
(B) will become due and payable at Stated Maturity within one
year,
or
(C) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, or the Guarantors, as the case may be, in the case
of (A), (B) or (C) above, has irrevocably deposited or caused to be
deposited with the Trustee funds in trust for the purpose in an
amount sufficient to pay and discharge the entire Indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any, on) and interest
on the Securities to the date of such deposit (in the case of
Securities that have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company or the Guarantors, as the case may be, has paid or
caused to be paid all sums payable hereunder by the Company; and
(c) the Company or the Guarantors, as the case may be, has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of
30 days (whether or not prohibited by the Article XIV);
(b) default in the payment of the principal of or premium, if any,
on any Security when due (whether or not prohibited by Article XIV);
(c) failure to perform or comply with the provisions described in
Article VIII or to make or consummate a Change of Control Offer or an
Asset Sale Offer in accordance with the provision of Section 1012 and
Section 1013, respectively;
(d) default in the performance, or breach, of any covenant or
agreement of the Company or any Guarantor contained in this Indenture or
any Securities Guarantee (other than as contemplated by clauses (a), (b)
and (c) above) and continuance of such default or breach for a period of
60 days after written notice has been given (x) to the Company by the
Trustee or (y) to the Company and the Trustee
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by the Holders of at least 25% in aggregate principal amount of the
Securities then Outstanding;
(e) the occurrence of an event of default under any mortgage, bond,
indenture, loan agreement or other document evidencing Indebtedness of the
Company or any Restricted Subsidiary, which Indebtedness has an aggregate
outstanding principal amount of $25,000,000 or more, and such default (i)
results in the acceleration of such Indebtedness prior to its Stated
Maturity or (ii) constitutes a failure to make any payment with respect to
any such Indebtedness when due and payable after expiration of any
applicable grace period;
(f) failure by the Company or any of its Restricted Subsidiaries to
pay one or more final judgments the uninsured portion of which exceeds in
the aggregate $25,000,000, which judgment or judgments are not paid,
discharged or stayed for a period of 60 days;
(g) any Securities Guarantee ceases to be in full force and effect
or is declared null and void or any Guarantor denies that it has any
further liability under any Securities Guarantee, or gives notice to such
effect (other than by reason of the termination of this Indenture or the
release of any such Securities Guarantee in accordance with this
Indenture), and such condition has continued for a period of 30 days after
written notice of such failure requiring the Guarantor and the Company to
remedy the same has been given (x) to the Company by the Trustee or (y) to
the Company and the Trustee by the Holders of 25% in aggregate principal
amount of the Securities then outstanding;
(h) entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect
of the Company or any Significant Subsidiary under the Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(i) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
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Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in Section 501(h) or (i))
occurs and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities then Outstanding may, and the
Trustee at the request of such Holders shall, declare the principal of and
premium, if any, and accrued and unpaid interest on, all of the Outstanding
Securities immediately due and payable and, upon any such declaration, all such
amounts will become due and payable immediately. If an Event of Default
specified in Section 501(h) or (i) above occurs and is continuing, then the
principal and premium, if any, and accrued and unpaid interest on all of the
Securities Outstanding will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
Securities. The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, notice of any default or acceleration referred to the
Section 501(e).
At any time after a declaration of acceleration, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind such
declaration and its consequences if
(i) the Company or any Guarantor has paid or deposited with the
Trustee a sum sufficient to pay,
(A) all overdue interest on all Securities,
(B) all unpaid principal of and premium, if any, on any
Outstanding Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne
by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne
by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default, other than the non-payment of amounts of
principal of or premium, if any, on or interest on the Securities that
have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Securities because of an Event of Default
specified in Section 501(e) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such Indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
Subject to Article XIV, the Company and each of the Guarantors covenants
that if
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of or premium,
if any, on any Security at the Maturity thereof,
the Company and each Guarantor will, upon demand of the Trustee, pay to the
Trustee for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if any) and
interest, and interest on any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installment of interest, at the rate borne by the Securities, and, in
addition thereto, 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.
If the Company or any Guarantor, as the case may be, fails to pay such
amounts forthwith upon such demand, the Trustee, in its own name as trustee of
an express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company, such Guarantor or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, such
Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate
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judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities (including the Guarantors) or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such 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 of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other securities or
property payable or deliverable upon the conversion or exchange of such
securities or upon any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official 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 the
Trustee any amount due 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 606.
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 Securities
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 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by
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the Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company and/or the Guarantors, as
the case may be.
SECTION 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities (including fees and
expenses of its agents and counsel) to be incurred in compliance with such
request;
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(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article XII and Section
1404) and in such Security of the principal of and premium, if any, and (subject
to Section 309) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantors, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
308, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may, on behalf of the Holders of all of the Securities,
waive any past defaults hereunder, except a default
(a) in the payment of the principal of or premium, if any or
interest on any Security, or
(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Security Outstanding.
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 Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
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The Company and each Guarantor covenant (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law 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 Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal (or premium, if any ) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 516. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No officer, employee, incorporator or stockholder of the Company or the
Guarantors, as such, shall have the liability for any obligations of the Company
or the Guarantors under the Securities or the Securities Guarantees or this
Indenture, as applicable, for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each holder by accepting a Security and
the Securities Guarantees waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities.
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and is known
to the Trustee, the Trustee shall mail to each Holder of the Securities in the
manner and to the
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extent provided in TIA Section 313(c) notice of the Default or Event of Default
within 90 days after the occurrence thereof; provided, however, that, except in
the case of a Default or an Event of Default in the payment of principal of and
premium, if any, on or interest on any Securities, the Trustee may withhold the
notice to the Holders of the Securities if a committee of its trust officers in
good faith determines that withholding such notice is in the interests of the
Holders of the Securities.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting, pursuant to the terms of this Indenture
or otherwise, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper Person or Persons;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order with
sufficient detail as may be requested by the Trustee and any resolution of
the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate or an Opinion of
Counsel;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities (including fees and expenses
of its agents and counsel) which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into,
and may conclusively rely upon, the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order,
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bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture; and
(i) except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in
this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Guarantors, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, the Securities or any Securities Guarantee. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any Registrar or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on
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any money received by it hereunder except as otherwise agreed with the Company
or any Guarantor, as the case may be.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee (in its capacity as Trustee, Paying Agent
and Registrar) from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
enforcing this Indenture against the Company or the Guarantors (including
this Section 606) and of defending itself against any claim (whether
asserted by any Holder or the Company) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and any termination under any bankruptcy law. As
security for the performance of such obligations of the Company, the Trustee
shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of and premium, if any, or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(h) or (i), the expenses (including the
reasonable charges and expenses of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
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SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1). The Trustee together with its parent
on a consolidated basis shall have a combined capital and surplus of at least
$50,000,000 and each successor Trustee shall have a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of Federal, State,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, except when the Trustee's duty to resign is stayed in accordance
with the provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed
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or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder subject to the retiring Trustee's rights as provided under the
last sentence of Section 606. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such cases
such certificates shall have the full force and effect which this Indenture
provides that the certificate of authentication of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into any other Person
(whether or not the Company is the surviving Person), or directly or indirectly
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Subsidiaries taken as a whole) to any Person or
Persons, in one transaction or a series of related transactions, unless each of
the following conditions is satisfied:
(a) either (i) the Company is the surviving corporation or (ii) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquires by sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a consolidated basis (the "Surviving Entity")
(A) is a corporation, partnership, limited liability company or trust duly
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia and (B) expressly assumes, by a
supplemental indenture in form reasonably satisfactory to the Trustee, all
the obligations of the Company under this Indenture and the Securities;
(b) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, no Default or Event of Default has
occurred and is continuing;
(c) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, the Consolidated Net Worth of the
Company (or of the Surviving Entity if the Company is not the continuing
obligor under this Indenture) is equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction or series
of transactions;
(d) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (on the assumption that the transaction
or series of transactions occurred at the beginning of the most recently
ended four full fiscal quarter period for which internal financial
statements are available), the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture) could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the first paragraph of Section 1010;
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(e) if the Company is not the continuing obligor under this
Indenture, each Guarantor, unless it is the other party to such
transaction or series of related transactions, has by supplemental
indenture confirmed that its Securities Guarantee applies to the Surviving
Entity's obligations under this Indenture and the Securities; and
(f) the Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries that constitutes all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
SECTION 802. Successor Substituted.
In the event of any transaction or series of related transactions
described in and complying with the conditions listed in Section 801 in which
the Company is not the continuing obligor under this Indenture, the Surviving
Entity shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein, and thereafter the
Company shall, except in the case of a lease, be discharged of all its
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SECURITIES GUARANTEES
SECTION 901. Without Consent of Holders.
Without the consent of any Holders, the Company and any affected
Guarantor, each when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities or to add any Guarantors of the
Securities; or
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(b) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Securities in addition to or in
place of the certificated Securities; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section
609; or
(f) to secure the Securities or any Securities Guarantee; or
(g) to cure any ambiguity, to correct or supplement any provision in
this Indenture which may be defective or inconsistent with any other
provision herein, or to make any other provision in this Indenture, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action shall not adversely affect
the interests of the Holders; or
(h) to qualify, or maintain the qualification of, this Indenture
under the Trust Indenture Act.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture,
Security or Securities Guarantee, and upon receipt by the Trustee of the
documents described in Section 903 hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture or Securities
Guarantee authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture or Securities Guarantee that affects its own rights,
duties or immunities under this Indenture or otherwise.
SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company, any affected Guarantor and the Trustee, the Company and the
Guarantors, each when authorized by a Board Resolution, and the Trustee may
enter into one or more indentures supplemental hereto for the purpose of
modifying in any manner this Indenture or any Securities Guarantee; provided,
however, that no such indenture supplemental may, without the consent of the
Holder of each Outstanding Security affected thereby:
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(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin or
currency in which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(b) reduce the percentage in aggregate principal amount of the
Outstanding Securities required to consent to any amendment of, or waiver
of compliance with, any provision of or defaults under this Indenture; or
(c) waive a Default or Event of Default in the payment of principal
of, or premium, if any, or interest on the Securities (except a rescission
of acceleration of Securities by the Holders of at least a majority in
aggregate principal amount of the then Outstanding Securities (including
Additional Securities issued under this Indenture, if any); or
(d) release any Guarantor from any of its obligations under its
Securities Guarantee or this Indenture, except in accordance with the
terms of this Indenture;
(e) amend, change or modify the obligation of the Company to make
and consummate a Change of Control Offer or Asset Sale Offer in accordance
with the provisions of Section 1012 on Section 1013, respectively; or
(f) amend, change or modify any of the provisions in Article XIV in
a manner adverse to the Holders.
(g) amend, change or modify any of the provisions in this Section
902.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company and the Guarantor subject to the customary
exceptions. The Trustee may, but shall not be obligated to, enter into any such
supplemental
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indenture which affects the Trustees own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, any affected Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of and premium, if any and interest
on the Securities in accordance with the terms of the Securities and this
Indenture. Principal and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in
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accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities or any Guarantor
in respect of the Securities Guarantees and this Indenture may be served. The
Corporate Trust Office located at Xxx Xxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 of the Trustee shall be such office or agency of the Company, unless
the Company shall designate and maintain some other office or agency for one or
more of such purposes. The Company will give prompt written notice to the
Trustee of any change in the location of any 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 and the Company and each Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or premium, if any, or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal of or premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of or premium,
if any, or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action or any
failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
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 or premium, if any, or
interest on any Security 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 Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day
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and of general circulation in the Borough of Manhattan, The City of New York,
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 publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and corporate power of the Company and each Subsidiary; provided,
however, that the Company shall not be required to preserve any such corporate
existence and corporate power if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole and that the loss
thereof is not materially adverse to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
lawful claims for labor, materials and supplies, which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim (i) whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings or (ii) where the failure to pay is not materially
adverse to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary is not materially
adverse to the Holders.
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SECTION 1007. Insurance.
The Company will at all times keep all of its and its Restricted
Subsidiaries' material properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage to
the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties.
SECTION 1008. Statement by Officers As to Default.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of compliance by the Company and the Restricted Subsidiaries with all
conditions and covenants under this Indenture. For purposes of this Section
1008(a), such compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this Indenture,
or if the trustee for or the holder of any other evidence of Indebtedness of the
Company or any Restricted Subsidiary gives any notice or takes any other action
with respect to a claimed default, the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission an
officers certificate specifying such event, notice or other action within five
Business Days of its occurrence.
SECTION 1009. Provision of Reports and Financial Statements.
The Company shall be required to file on a timely basis with the
Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that the
Company would be required to file if it were subject to Section 13 or 15(d) of
the Exchange Act, provided, however, that so long as the Parent is a Guarantor,
the reports, information and other documents required to be filed and provided
as described hereunder may, at the Company's option, be filed by and be those of
the Parent rather than the Company; provided further, however, that if the
Parent conducts any business or holds any significant assets other than the
capital stock of the Company at the time any such report or other document
containing financial statements of the Parent is filed, the Parent shall include
in such report or other document (a) summarized financial information (as
defined in Rule 1-02(bb) of Regulation S-X promulgated by the Commission) with
respect to the Company or (b) condensed consolidating financial statements in a
columnar format with separate columns that contain financial information for (i)
the Parent on a stand-alone basis, (ii) the Company on a stand-alone basis,
(iii) the Subsidiary Guarantors and (iv) the Non-Subsidiary Guarantors. The
Company shall also be required (x) to supply to the Trustee and each Holder, or
supply to the Trustee for forwarding to each such Holder, without cost to such
Holder, copies of such reports and documents within 15 days after the date on
which the Company (or the Parent, as the case may be) files such reports and
documents with the
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Commission or the date on which the Company (or the Parent, as the case may be)
would be required to file such reports and documents if the Company (or the
Parent, as the case may be) were so required and (y) if filing such reports and
documents with the Commission is not accepted by the Commission or is prohibited
under the Exchange Act, to supply at the Company's cost copies of such reports
and documents to any prospective Holder of Securities promptly upon written
request.
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
The Company shall not, and shall not permit any Restricted Subsidiary to,
create, issue, assume, guarantee or in any manner become directly or indirectly
liable for the payment of, or otherwise incur (collectively, "incur"), any
Indebtedness (including Acquired Indebtedness), other than Permitted
Indebtedness, or issue any Disqualified Stock, except that the Company or a
Restricted Subsidiary may incur Indebtedness or issue Disqualified Stock if, at
the time of such incurrence or issuance, the Fixed Charge Coverage Ratio for the
four full fiscal quarters (taken as one accounting period) immediately preceding
the incurrence of such Indebtedness or the issuance of such Disqualified Stock
for which internal financial statements are available would have been equal to
at least 2.0 to 1.0 if such incurrence is on or prior to the second anniversary
of the Closing Date and 2.25 to 1.0 if thereafter.
In making the foregoing calculation for any four-quarter period which
includes the Closing Date, pro forma effect shall be given to the Offering and
the application of the net proceeds therefrom, as if such transactions had
occurred at the beginning of such four-quarter period. In addition (but without
duplication), in making the foregoing calculation, pro forma effect will be
given to: (i) the incurrence of such Indebtedness and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred and the application of such
proceeds occurred at the beginning of such four-quarter period, (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company or
its Restricted Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was incurred, repaid or retired at the beginning of such
four-quarter period, (iii) if the acquisition (whether by purchase, merger or
otherwise) or disposition (whether by sale, merger or otherwise) of any other
company, entity or business acquired or disposed of by the Company or any
Restricted Subsidiary, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period. In making a computation under the
foregoing clause (i) or (ii), (A) interest on Indebtedness bearing a floating
interest rate shall be computed as if the rate in effect on the dated of
computation had been the applicable rate for the entire period (taking into
account any Hedging Obligations applicable to such Indebtedness if such Hedging
Obligations have a remaining term at the date of determination in excess of 12
months), (B) if such Indebtedness bears, at the option of the Company, a fixed
or floating rate of interest, interest thereon will be computed by applying, at
the option of the Company, either the fixed or floating rate and (C) the amount
of any Indebtedness
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under a revolving credit facility will be computed based on the average daily
balance of such Indebtedness during such four-quarter period.
SECTION 1011. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment unless at the time of, and immediately after giving
effect to, the proposed Restricted Payment: (i) no Default or Event of Default
has occurred and is continuing, (ii) the Company could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
first paragraph of Section 1010 and (iii) the aggregate amount of all Restricted
Payments declared or made after the Closing Date does not exceed the sum of:
(A) 50% of the Consolidated Net Income of the Company accrued on a
cumulative basis during the period (taken as one accounting period)
beginning on the first day of the Company's fiscal quarter during which
the Closing Date occurs and ending on the last day of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income is a loss, minus 100% of such
amount), plus
(B) the aggregate net cash proceeds received by the Company after
the Closing Date from the issuance or sale (other than to a Subsidiary)
of, or as a capital contribution in respect of, Qualified Equity Interests
of the Company, plus
(C) the aggregate net proceeds, including the fair market value of
property other than cash (as determined by the Board of Directors, whose
good faith determination will be conclusive), received by the Company
after the Closing Date from the issuance or sale (other than to a
Subsidiary) of debt securities or Disqualified Stock that have been
converted into or exchanged for Qualified Stock of the Company, plus the
aggregate net cash proceeds received by the Company at the time of such
conversion or exchange, plus
(D) the amount by which Indebtedness of the Company is reduced on
the Company's balance sheet upon the conversion or exchange (other than by
a Subsidiary of the Company) subsequent to the Closing Date of any
Indebtedness of the Company for Capital Stock (other than Disqualified
Stock) of the Company (less the amount of any cash, or the fair value of
any other property, distributed by the Company upon such conversion or
exchange); plus
(E) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and its Restricted
Subsidiaries may take any of the following actions, so long as, with respect to
clauses (ii), (v), (vii), (viii), (ix), (x) and (xi), no Default or Event of
Default has occurred and is continuing or would occur:
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(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at the declaration date such payment would not
have been prohibited by the foregoing provision;
(ii) the repurchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company, in exchange for,
or out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Subsidiary), of Qualified Equity Interests of the
Company;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness in exchange for, or
out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Subsidiary), of Qualified Equity Interests of the
Company;
(iv) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness in exchange for, or out
of the net cash proceeds of a substantially concurrent issuance or sale
(other than to a Subsidiary) of, Subordinated Indebtedness, so long as the
Company or a Subsidiary would be permitted to refinance such original
Subordinated Indebtedness with such new Subordinated Indebtedness pursuant
to clause (xii) of the definition of Permitted Indebtedness;
(v) the repurchase of any Subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount of such Subordinated
Indebtedness in the event of a "change of control" in accordance with
provisions similar to the provisions of Section 1013; provided that, prior
to or simultaneously with such repurchase, the Company has made the Change
of Control Offer as provided in such covenant with respect to the
Securities and has repurchased all Securities validly tendered for payment
in connection with such Change of Control Offer;
(vi) the payment of dividends or the making of loans or other
advances by the Company to the Parent to be used by the Parent to pay
federal, state, local and foreign taxes payable by the Parent and directly
attributable to (or that arise as result of) the operations of the Company
and its Restricted Subsidiaries; provided, however, that (A) the amount of
such dividends shall not exceed the amount that the Company and its
Restricted Subsidiaries would be required to pay in respect of such
federal, state, local and foreign taxes were the Company to pay such taxes
as a stand-alone taxpayer and (B) such dividends, loans or other advances
pursuant to this clause (vi) are used by the Parent for such purposes
within 20 days of the receipt thereof by the Parent;
(vii) the payment of dividends or the making of loans or advances by
the Company to the Parent in an aggregate amount not to exceed $5,000,000
in any fiscal
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year for customary costs and expenses incurred by the Parent in its
capacity as a holding company or for services rendered by the Parent on
behalf of the Company;
(viii)the payment of, or the payment of a dividend or the making of
a loan or other advance to the Parent to enable the Parent to pay,
interest and principal due under the PIK Subordinated Debenture, provided
that such payment of interest or principal (A) is made in cash by the
Company or the Parent, as the case may be, (B) is made at the original
Stated Maturity of such interest or principal, (C) is an amount that is no
greater than actual amount of interest or principal due at such Stated
Maturity and (D) immediately after giving effect to such payment, loan or
advance, the Company could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the first paragraph of
Section 1010;
(ix) the payment of, or the payment of a dividend or the making of a
loan or other advance to the Parent to enable the Parent to pay, interest
and principal due under the Parent Promissory Note and the Parent IRBs or
any Indebtedness incurred to refinance the Parent Promissory Note or the
Parent IRBs, as the case may be, in compliance with clause (x) below,
provided that such payment of interest or principal (A) is made in cash by
the Company or the Parent, as the case may be, (B) is made at the original
Stated Maturity of such interest or principal, and (C) is an amount that
is no greater than actual amount of interest or principal due at such
Stated Maturity;
(x) the payment of a dividend or the making of a loan or other
advance to the Parent to enable the Parent to refinance the Parent
Promissory Note and Parent IRBs provided that (A) the principal amount of
any such refinancing Indebtedness incurred by the Parent does not exceed
the principal amount of the Parent Promissory Note or Parent IRBs, as the
case may be, refinanced, plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Parent Promissory Note or Parent IRBs, as the case may be, or the amount
of any premium reasonably determined by the Parent as necessary to
accomplish such refinancing, plus the amount of the expenses of the Parent
reasonably estimated to be incurred in connection with such refinancing,
(B) any such refinancing Indebtedness is unsecured, (C) such refinancing
Indebtedness has a Weighted Average Life equal to or greater than the
Weighted Average Life of the Parent Promissory Note or Parent IRBs, as the
case may be, and (D) such refinancing Indebtedness has a final Stated
Maturity no earlier than the final Stated Maturity of the Parent
Promissory Note or Parent IRBs, as the case may be; provided, however,
that if such dividend, loan or other advance to the Parent is financed by
the Company with Indebtedness incurred pursuant to clause (i) of the
definition of Permitted Indebtedness, then the foregoing clauses (A), (B),
(C) and (D) shall not be applicable in connection with such dividend, loan
or advance to the Parent; and
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(xi) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness owed by the Company to
any Wholly-Owned Foreign Restricted Subsidiary.
The payments described in clauses (ii), (iii), (v) and (viii) of this paragraph
shall be Restricted Payments that shall be permitted to be taken in accordance
with this paragraph (b) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (iii) of paragraph (a) of this
Section 1011 and the payments described in clauses (i), (iv), (vii), (ix), (x)
and (xi) of this paragraph (b) shall be Restricted Payments that shall be
permitted to be taken in accordance with this paragraph (b) and shall not reduce
the amount that would otherwise be available for Restricted Payments under
clause (iii) of paragraph (a) of this Section 1011.
(c) For the purpose of making any calculations under this Indenture (i) if
a Restricted Subsidiary is designated an Unrestricted Subsidiary, the Company
shall be deemed to have made an Investment in an amount equal to the greater of
fair market value or net book value of the net assets of such Restricted
Subsidiary at the time of such designation as determined by the Board of
Directors of the Company, whose good faith determination will be conclusive,
(ii) any property transferred to or from an Unrestricted Subsidiary will be
valued at fair market value at the time of such transfer, as determined by the
Board of Directors of the Company, whose good faith determination will be
conclusive and (iii) subject to the foregoing, the amount of any Restricted
Payment, if other than cash, will be determined by the Board of Directors of the
Company, whose good faith determination will be conclusive.
If the aggregate amount of all Restricted Payments calculated under
paragraph (a) of this Section 1011 includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, the
aggregate amount of all Restricted Payments calculated under the first paragraph
of this Section 1011 shall be reduced by the lesser of (x) the net asset value
of such Subsidiary at the time it becomes a Restricted Subsidiary and (y) the
initial amount of such Investment.
If an Investment resulted in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments calculated under this Section 1011
shall be reduced by the amount of any net reduction in such Investment
(resulting from the payment of interest or dividends, loan repayment, transfer
of assets or otherwise), to the extent such net reduction is not included in the
Company's Consolidated Net Income; provided that the total amount by which the
aggregate amount of all Restricted Payments may be reduced shall not exceed the
lesser of (x) the cash proceeds received by the Company and its Restricted
Subsidiaries in connection with such net reduction and (y) the initial amount of
such Investment.
In computing the Consolidated Net Income of the Company for purposes of
clause (iii)(A) of paragraph (a) of this Section 1011, (i) the Company may use
audited financial statements for the portions of the relevant period for which
audited financial statements are
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available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (ii) the Company will be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment that, at the time of
the making of such Restricted Payment, would in the good faith determination of
the Company be permitted under the requirements of this Indenture, such
Restricted Payment shall be deemed to have been made in compliance with this
Indenture notwithstanding any subsequent adjustments made in good faith to the
Company's financial statements affecting Consolidated Net Income of the Company
for any period.
SECTION 1012. Purchase of Securities upon a Change of Control.
If a Change of Control occurs at any time, then each Holder shall have the
right to require that the Company purchase such Holder's Securities, in whole or
in part, at a purchase price in cash equal to 101% of the principal amount of
such Securities, if any, plus accrued and unpaid interest, if any, to the date
of purchase, pursuant to the offer described below (the "Change of Control
Offer") and the other procedures set forth in this Indenture.
Within 30 days following any Change of Control, the Company shall notify
the Trustee thereof and give written notice of such Change of Control to each
holder of Securities by first-class mail, postage prepaid, at its address
appearing in the Security Register, stating, among other things, (i) the
purchase price and the purchase date, which will be a Business Day no earlier
than 30 days nor later than 60 days from the date such notice is mailed or such
later date as is necessary to comply with requirements under the Exchange Act
(the "Change of Control Payment Date"); (ii) that any Security or Additional
Security not tendered will continue to accrue interest; (iii) that, unless the
Company defaults in the payment of the purchase price, any Securities or
Additional Securities accepted for payment pursuant to the Change of Control
Offer will cease to accrue interest after the Change of Control Payment Date;
(iv) that Holders electing to have any Securities and Additional Securities
purchased pursuant to a Change of Control Offer shall be required to surrender
the Securities, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Securities completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date; (v) that Holders shall be entitled
to withdraw their election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Securities delivered for
purchase, and a statement that such Holder is withdrawing his election to have
such Securities purchased; (vi) that Holders whose Securities are being
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral multiple
thereof; and (vii) the instructions that the Holders of Securities must follow
in order to tender their Securities.
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The Company shall comply with any applicable tender offer rules including
Rule 14e-1 under the Exchange Act, and any other applicable securities laws and
regulations in connection with a Change of Control Offer.
SECTION 1013. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any Asset Sale unless (i) the consideration received by the
Company or such Restricted Subsidiary for such Asset Sale is not less than the
fair market value of the assets sold (as determined by the Board of Directors of
the Company, whose good faith determination will be conclusive, and evidenced by
a resolution of the Board of Directors) and (ii) the consideration received by
the Company or the relevant Restricted Subsidiary in respect of such Asset Sale
consists of at least 75% cash or Cash Equivalents; provided that the amount of
(x) any liabilities (as shown on the most recent balance sheet of the Company or
such Restricted Subsidiary) of the Company or any of its Restricted Subsidiaries
(other than liabilities that are by their terms subordinated to the Securities
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 promptly converted by the Company or such Restricted
Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash
Equivalents received), shall be deemed to be cash or Cash Equivalents, as the
case may be, for purposes of this provision.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale,
the Company may, at its option, within 360 days after such Asset Sale, (i) apply
all or a portion of the Net Cash Proceeds to the permanent reduction of amounts
outstanding under the Senior Credit Facility or to the repayment of other Senior
Indebtedness of the Company or a Restricted Subsidiary or (ii) invest (or enter
into a legally binding agreement to invest) all or a portion of such Net Cash
Proceeds in properties and assets to replace the properties and assets that were
the subject of the Asset Sale or in properties and assets that will be used in
businesses of the Company or its Restricted Subsidiaries, as the case may be, as
such businesses are conducted prior to such Asset Sale or in businesses
reasonably related or ancillary thereto (in any such case as determined by the
Board of Directors in good faith). If any such legally binding agreement to
invest such Net Cash Proceeds is terminated, the Company may, within 90 days of
such termination or within 360 days of such Asset Sale, whichever is later,
invest such Net Cash Proceeds as provided in clause (i) or (ii) (without regard
to the parenthetical contained in such clause (ii)) above. Notwithstanding the
foregoing, if the Company or any Restricted Subsidiary engages in an Asset Sale
of Designated Assets, (x) the Company may, at its option, within 360 days after
such Asset Sale of Designated Assets, (1) apply all or a portion of the Net Cash
Proceeds to the repayment of amounts outstanding under the Senior Credit
Facility or to the repayment of other Senior Indebtedness of the Company or a
Restricted Subsidiary or (2) invest (or enter into a legally binding agreement
to invest) all or a portion of such Net Cash Proceeds as set forth in
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clause (ii) above and (y) the Company or the relevant Restricted Subsidiary
shall not be required to receive, as set forth in clause (ii) of paragraph (a)
of this Section 1013, 75% of the consideration in respect of such Asset Sale of
Designated Assets in the form of cash or Cash Equivalents. The amount of such
Net Cash Proceeds not so used as set forth above in this paragraph (b)
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $15,000,000, the
Company shall, within 30 days thereafter, make an offer to purchase (an "Asset
Sale Offer") from all Holders of Securities on a pro rata basis, in accordance
with the procedures set forth in paragraph (d) below, the maximum principal
amount (expressed as a multiple of $1,000) of Securities that may be purchased
with the Excess Proceeds. The offer price as to each Security will be payable in
cash in an amount equal to 100% of the principal amount of such Security plus in
each case accrued and unpaid interest, if any, to the date of repurchase. To the
extent that the aggregate principal amount of Securities tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use the
portion of the Excess Proceeds not required to be used to repurchase the
Securities for general corporate purposes. If the aggregate principal amount of
Securities validly tendered and not withdrawn by holders thereof exceeds the
Excess Proceeds, the Securities to be purchased will be selected on a pro rata
basis (based upon the principal amount of Securities). Upon completion of such
Asset Sale Offer, the amount of Excess Proceeds will be reset to zero.
(d) Within the time period described in paragraph (c) above for making an
Asset Sale Offer, the Company shall mail a notice to each Holder in the manner
provided in Section 106 stating: (1) that the Asset Sale Offer is being made
pursuant to the provisions of Section 1013 of this Indenture and that all
Securities and Additional Securities, if any, duly and timely tendered shall be
accepted for payment (except, as provided above, if the aggregate principal
amount as the case may be, of the Securities and Additional Securities exceeds
the amount of Excess Proceeds); (2) the purchase price and the purchase date
which will be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed (the "Asset Sale Purchase Date"); (3) that any
Security not tendered will continue to accrue interest; (4) that, unless the
Company defaults in the payment of the purchase price, any Securities accepted
for payment pursuant to the Asset Sale Offer will cease to accrue interest after
the Asset Sale Purchase Date; (5) that Holders electing to have any Securities
purchased pursuant to an Asset Sale Offer shall be required to surrender the
Securities, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Securities completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Asset Sale Purchase Date; (6) that Holders shall be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Asset Sale Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Securities
purchased; (7) that Holders whose Securities are being purchased only in part
shall be issued new Securities equal in principal amount of the unpurchased
portion of the Securities surrendered, which unpurchased portion must be
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equal to $1,000 in principal amount or an integral multiple thereof; and (8) the
instructions that the Holders of Securities must follow in order to tender their
Securities.
SECTION 1014. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or suffer to exist any transaction or series
of transactions with, or for the benefit of, any Affiliate of the Company or any
of its Restricted Subsidiaries unless (a) such transaction or series of
transactions is on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's length transaction with third parties who are not
Affiliates and (b) either (i) with respect to any transaction or series of
related transactions involving aggregate payments in excess of $5,000,000, but
less than $10,000,000, the Company delivers a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions comply with
clause (a) above and that such transaction or transactions have been approved by
the Board of Directors (including a majority of the Disinterested Directors) of
the Company or (ii) with respect to a transaction or series of related
transactions involving aggregate payments equal to or greater than $10,000,000,
the Company delivers to the Trustee (x) an Officers' Certificate certifying that
such transaction or series of related transactions have been approved by the
Board of Directors (including a majority of the Disinterested Directors) of the
Company and (y) a written opinion from a nationally recognized accounting or
investment banking firm to the effect that such transaction or series of related
transactions are fair to the Company or such Restricted Subsidiary from a
financial point of view.
The foregoing covenant shall not restrict any of the following:
(A) transactions among the Company and/or its Restricted
Subsidiaries;
(B) the Company from paying reasonable and customary regular
compensation or fees to, or entering into customary expense reimbursement,
indemnification or similar arrangements with, directors of the Company or
any Restricted Subsidiary who are not employees of the Company or any
Restricted Subsidiary;
(C) transactions permitted by the provisions of Section 1011;
(D) transactions among the Company, the Parent and Xxxxxxx pursuant
to the Stock Purchase Agreement; or
(E) any payments made by the Company or a Restricted Subsidiary to
the Parent or Xxxxxxx or transactions entered into among the Company, any
Restricted Subsidiary and the Parent and/or Xxxxxxx pursuant to customary
financial and management service arrangements (including, without
limitation, general liability and
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workers' compensation insurance, income tax management and treasury
services); provided, however, that each such payment or transaction is (a)
in the ordinary course of business consistent with past practice prior to
the date of the Indenture and (b) upon fair and reasonable terms no less
favorable to the Company or such Restricted Subsidiary, as the case may
be, than could have been obtained in a comparable arm's length transaction
with a Person that is not an Affiliate of the Company or such Restricted
Subsidiary.
SECTION 1015. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary, or (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of any of the following:
(i) the Indenture, the Senior Credit Facility, as originally
executed, and any other agreement in effect on the Closing Date to the
extent listed on Schedule II hereto;
(ii) applicable law;
(iii) customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Restricted Subsidiary;
(iv) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of
the Person, so acquired;
(v) any encumbrance or restriction contained in contracts for sales
of assets, including the Capital Stock of any Restricted Subsidiary
permitted by Section 1013 with respect to assets to be sold pursuant to
such contract; and
(vi) any encumbrance or restriction existing under any agreement
that extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (i) and (iv);
provided that the terms and conditions of any such encumbrances or
restrictions are not materially less favorable
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to the Holders of Securities than those under or pursuant to the agreement
so extended, renewed, refinanced or replaced.
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary,
directly or indirectly, to issue, convey, sell, assign, transfer, lease or
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary
(including options, warrants or other rights to purchase shares of such Capital
Stock) except (a) to the Company or a Wholly-Owned Restricted Subsidiary or (b)
in a transaction or series of related transactions consisting of a sale,
provided that immediately after giving effect to such issuance or sale neither
the Company nor any of its Subsidiaries owns any shares of Capital Stock of such
Restricted Subsidiary (including options, warrants or other rights to purchase
shares of such Capital Stock) and such sale complies with the provisions of
Section 1013.
The Company shall not permit any Restricted Subsidiary that is a Guarantor
to issue Preferred Stock.
SECTION 1017. Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary to,
create, incur, affirm or suffer to exist any Lien of any kind securing any Pari
Passu Indebtedness or Subordinated Indebtedness (including any assumption,
guarantee or other liability with respect thereto by any Restricted Subsidiary)
upon any property or assets (including any intercompany notes) of the Company or
any Restricted Subsidiary now owned or acquired after the Closing Date, or any
income or profits therefrom, unless the Securities are directly secured equally
and ratably with (or prior to in the case of Subordinated Indebtedness) the
obligation or liability secured by such Lien, and except for any Lien securing
Acquired Indebtedness created prior to the incurrence of such Indebtedness by
the Company or any Restricted Subsidiary, provided that any such Lien only
extends to the assets that were subject to such Lien securing such Acquired
Indebtedness prior to the related acquisition by the Company or the Restricted
Subsidiary.
SECTION 1018. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any Subsidiary
(including 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 made as a result of
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designating such Subsidiary an Unrestricted Subsidiary will not violate the
provisions of Section 1011, (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 those that
might be obtained at the time from Persons who are not Affiliates of the Company
and (v) neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other equity interest 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.
(b) The Board of Directors of the Company may designate any Unrestricted
Subsidiary as a Restricted Subsidiary; provided, that (i) no Default or Event of
Default has occurred and is continuing following such designation and (ii) the
Company could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the first paragraph of Section 1010
(treating any Indebtedness of such Unrestricted Subsidiary as the incurrence of
Indebtedness by a Restricted Subsidiary).
SECTION 1019. Limitation on Layering Indebtedness.
The Company and each Guarantor shall not, directly or indirectly, incur or
otherwise permit to exist any Indebtedness that is subordinate in right of
payment to any Indebtedness of the Company or such Guarantor, as the case may
be, unless such Indebtedness is also pari passu with, or subordinate in right of
payment to, the Securities or the Securities Guarantee issued by such Guarantor,
as the case may be, or subordinate in right of payment to the Securities or such
Securities Guarantee, as the case may be.
SECTION 1020. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
Other than a guarantee by a Foreign Restricted Subsidiary of the payment
of Indebtedness of another Foreign Restricted Subsidiary, the Company shall not
permit any Restricted Subsidiary that is not a Guarantor, directly or
indirectly, to guarantee, assume or in any other manner become liable for the
payment of any Indebtedness of the Company or any Indebtedness of any other
Restricted Subsidiary, unless (a) such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for a guarantee of
payment of the Securities by such Restricted Subsidiary; and (b) with respect to
any guarantee of Subordinated Indebtedness by a Restricted Subsidiary, any such
guarantee is subordinated to such Restricted Subsidiary's guarantee with respect
to the Securities at least to the same extent as such Subordinated Indebtedness
is subordinated to the Securities, provided that the foregoing provision shall
not be applicable to any guarantee by any Restricted Subsidiary that existed at
the time such Person became a Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary.
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Any guarantee by a Restricted Subsidiary of the Securities pursuant to the
preceding paragraph may provide by its terms that it shall be automatically and
unconditionally released and discharged upon: (a) any sale, exchange or transfer
to any Person of all of the Company's and the Restricted Subsidiaries' Capital
Stock in, or all or substantially all the assets of, such Restricted Subsidiary
(which sale, exchange or transfer is not prohibited by this Indenture); (b) the
release or discharge of the guarantee that resulted in the creation of such
guarantee of the Securities, except a discharge or release by or as a result of
payment under such guarantee; or (c) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of this
Indenture.
SECTION 1021. Limitation on Conduct of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, conduct any business other than the business the Company and
its Restricted Subsidiaries were conducting on the Closing Date or businesses
reasonably related or ancillary thereto, except to such extent as would not be
material to the Company and its Restricted Subsidiaries taken as a whole.
SECTION 1022. Limitation on Incurrence of Contingent Obligations.
The Company shall not, and shall not permit any Restricted Subsidiary to,
create, issue, assume, guarantee or in any manner become directly or indirectly
liable for the payment of, or otherwise incur, any Contingent Obligations if, at
the time of such incurrence, all Contingent Obligations outstanding at the date
of such incurrence in the aggregate equal or exceed an amount equal to 17% of
the total assets of the Company and its Restricted Subsidiaries (on a
consolidated basis determined in accordance with GAAP).
SECTION 1023. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Securities unless such consideration is offered to be paid or is paid to
all Holders that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
SECTION 1024. Limitation on Liens Securing Indebtedness.
After the occurrence of a Fall-away Event, the Company shall not, and
shall not permit any Restricted Subsidiary to, create, incur or assume any Lien
(other than any Permitted Lien) on any properties or assets of the Company or
any Restricted Subsidiary to secure the payment of Indebtedness of the Company
or any Subsidiary if immediately after the creation, incurrence or assumption of
such Lien, the aggregate outstanding principal amount of all Indebtedness of the
Company and the Subsidiaries that is secured by Liens
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(other than Permitted Liens) on any properties or assets of the Company and any
Restricted Subsidiaries (other than (x) Indebtedness that is so secured equally
and ratably with (or on a basis subordinated to) the Securities and (y) the
Securities) plus the aggregate amount of all Attributable Debt of the Company
and the Restricted Subsidiaries with respect to all Sale and Leaseback
Transactions outstanding at such time (other than Sale and Leaseback
Transactions permitted by the second paragraph under Section 1024) would exceed
10% of the Consolidated Net Tangible Assets unless the Company secures the
outstanding Securities equally and ratably with (or prior to) all Indebtedness
secured by such Lien, so long as such Indebtedness shall be so secured.
SECTION 1025. Limitation on Sale and Leaseback Transactions.
After the occurrence of a Fall-away Event, the Company shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction involving any properties or assets of the Company or any Restricted
Subsidiary, as the case may be, unless, after giving effect to such Sale and
Leaseback Transaction, the aggregate amount of all Attributable Debt of the
Company and the Restricted Subsidiaries with respect to all Sale and Leaseback
Transactions outstanding at such time (other than Sale and Leaseback
Transactions permitted by the next paragraph), plus the aggregate principal
amount of all Indebtedness of the Company and the Subsidiaries that is secured
by Liens (other than Permitted Liens) on properties or assets of the Company or
any Restricted Subsidiary, as the case may be, (other than (x) Indebtedness that
is so secured equally and ratably with (or on a basis subordinated to) the
Securities and (y) the Securities) would not exceed 10% of Consolidated Net
Tangible Assets.
The restriction in the foregoing paragraph shall not apply to any Sale and
Leaseback Transaction if (a) the lease is for a period of not in excess of three
years, including renewal of rights, (b) the lease secures or relates to
industrial revenue or similar financing, (c) the transaction is solely between
the Company and a Restricted Subsidiary or between or among Restricted
Subsidiaries or (d) the Company or such Restricted Subsidiary, within 270 days
after the sale is completed, applies an amount equal to or greater of (i) the
Net Cash Proceeds of the sale of the properties or assets of the Company or any
Restricted Subsidiary, as the case may be, which are the subject of the Sale and
Leaseback Transaction or (ii) the fair market value of the properties or assets
of the Company or any Restricted Subsidiary, as the case may be, which are the
subject of the Sale and Leaseback Transaction (as determined in good faith by
the Board of Directors of the Company) either to (A) the retirement (or open
market purchase) of Notes, other long-term Indebtedness of the Company ranking
on a parity with or senior to the Notes or long-term Indebtedness of a
Restricted Subsidiary or (B) the purchase by the Company or any Restricted
Subsidiary of other properties and assets that will be used in the business of
the Company or its Restricted Subsidiaries (or businesses reasonably related or
ancillary thereto) having a value at least equal to the value of the properties
or assets of the Company or the Restricted Subsidiary, as the case may be, which
are the subject of the Sale and Leaseback Transaction.
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SECTION 1026. Waiver of Certain Covenants.
The Company or any Restricted Subsidiary may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1006 through 1025, inclusive, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities, by Act of such Holders, waive such compliance in such instance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1027. Fall-Away of Certain Covenants.
In the event that the Securities achieve an Investment Grade rating and no
Default or Event of Default shall have occurred and be continuing, upon the
request of the Company, the covenants described under Sections 801(c) and (d)
and 1009 to 1023 will no longer be applicable to the Company and, if applicable,
its Restricted Subsidiaries; provided that the Company delivers to the Trustee
(i) an Officers' Certificate certifying that the Fall-away Event shall have
occurred and (ii) a letter from Xxxxx'x and S&P, dated not more than three days
prior to the date of such Officers' Certificate, verifying the Investment Grade
rating of the Securities (the occurrence of the events (including the delivery
to the Trustee of the documents referred to in clauses (i) and (ii)) are
referred to herein as a "Fall-away Event").
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
(a) The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time prior to June 1, 2003, subject
to the conditions and at the Redemption Price specified in the form of Security
attached hereto as Exhibit A, together with accrued and unpaid interest, if any,
to the Redemption Date.
(b) The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time on or after June 1, 2003,
subject to the conditions and at the Redemption Prices specified in the form of
Security attached hereto as Exhibit A, together with accrued and unpaid
interest, if any, to the Redemption Date.
(c) In addition, at any time or from time to time prior to June 1, 2001,
the Company may redeem, on one or more occasions, up to 35% of the sum of (i)
the initial aggregate principal amount of the Securities and (ii) the initial
aggregate principal amount of
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any Additional Securities with the net proceeds of one or more Public Equity
Offerings at a redemption price equal to 109.25% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date); provided that,
immediately after giving effect to any such redemption, at least $211,300,000
aggregate principal amount of the Securities (including any Additional
Securities) remains outstanding; provided further that such redemptions occur
within 90 days of the date of closing of the related Public Equity Offering.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal of Securities; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
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SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue on
and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any, and
(7) the CUSIP or CINS number, as the case may be.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or prior to 10:00 a.m. (New York City time) on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and accrued interest on, all the Securities which are to be redeemed
on that date.
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SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 309.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Securities.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article XII.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1202, the Company and the Guarantors shall be deemed to have been
discharged
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from their obligations with respect to all Outstanding Securities on the date
the conditions set forth in Section 1204 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1205 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities to receive payments in respect of the
principal of and premium, if any, on and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 308, 1002 and 1003, and with respect to the Trustee
under Section 606, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article XII. Subject to compliance with this
Article XII, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with respect
to the Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1203, each of the Company and the Restricted Subsidiaries shall be
released from its obligations under Sections 801(c) and 801(d), the covenants
contained in Sections 1004 through 1027 (other than Section 1008) with respect
to the Outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"), and the Events of
Default under Sections 501(c), 501(d) and 501(e) and the Securities shall
thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities, the Company
and any Restricted Subsidiary 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 Sections
501(c), 501(d), 501(e) and 501(f) but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Outstanding Securities:
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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 607 who shall agree to comply with the provisions of this
Article XII applicable to it) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations (as defined herein) that through the scheduled payment of
principal and interest thereon will provide money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay and discharge the principal
of and premium, if any, on and interest on the Outstanding Securities on
the Stated Maturity (or upon Redemption Date, if applicable) of such
principal (and premium, if any) or installment of interest; provided that
the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to said payments with
respect to the Securities. Before such a deposit, the Company may give to
the Trustee, in accordance with Section 1103 hereof, a notice of its
election to redeem all of the Outstanding Securities at a future date in
accordance with Article XI hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying
the foregoing. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (h) and (i) of Section 501 hereof are concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Guarantor is a party or by which it is bound.
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(4) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the Closing Date, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such 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
defeasance had not occurred.
(5) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Securities Outstanding will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1202 or the covenant defeasance under Section 1203, as the case may be,
have been complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1204 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 Securities.
Anything in this Article XII to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S.
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Government Obligations held by it as provided in Section 1204 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1202 or 1203, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1205; provided, however, that if the Company makes any payment of
principal of or premium, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE XIII
SECURITIES GUARANTEES
SECTION 1301. Securities Guarantees.
(a) The Parent and each Subsidiary Guarantor hereby jointly and severally,
fully, absolutely, unconditionally and irrevocably guarantees to each Holder of
a Security authenticated and delivered by the Trustee, and to the Trustee for
its benefit and the benefit of each Holder, the punctual payment and performance
when due of all Indenture Obligations which, for purposes of its Securities
Guarantee, shall also be deemed to include all commissions, fees, charges, costs
and other expenses (including reasonable legal fees and disbursements of
counsel) arising out of or incurred by the Trustee or the Holders in connection
with the enforcement of any Securities Guarantee. Without limiting the
generality of the foregoing, each Guarantor's liability shall extend to all
amounts that constitute part of the Indenture Obligations and would be owed by
the Company to such Holder or the Trustee under the Securities or this Indenture
but for the fact that they are unenforceable, reduced, limited, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Securities Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent
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Transfer Act of any similar federal or state law or the provisions of its local
law relating to fraudulent transfer or conveyance. To effectuate the foregoing
intention, the Holders and each Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its Securities Guarantee shall be limited to
the maximum amount as shall, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Securities Guarantee or pursuant
to paragraph (c) of this Section 1301, result in the obligations of such
Guarantor under its Securities Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law.
(c) In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Securities Guarantee, such Funding Guarantor shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor (including the Funding Guarantor) for all payments, damages
and expenses incurred by the Funding Guarantor in discharging the Indenture
Obligations of the Company or any other Guarantor's obligations with respect to
its Securities Guarantee. "Adjusted Net Assets" of such Guarantor at any date
shall mean the lesser of (x) the amount by which the fair value of the property
of such Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Securities Guarantee of such Guarantor at such date and
(y) the amount by which the present fair salable value of the assets of such
Guarantor at such date exceeds the amount that shall be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities incurred or assumed on such date),
excluding debt in respect of the Securities Guarantee, as they become absolute
and matured.
SECTION 1302. Guaranty Absolute.
Each Guarantor guarantees that the Securities shall be paid or performed
strictly in accordance with the terms of the Securities and this Indenture,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Holder with
respect thereto. The obligations of each Guarantor under its Securities
Guarantee are independent of the obligations of the Company under the Securities
and this Indenture, and a separate action or actions may be brought and
prosecuted against such Guarantor to enforce its Securities Guarantee,
irrespective of whether any action is brought against the Company or any other
Guarantor or whether the Company or any other Guarantor is joined in any such
action or actions. The liability of each Guarantor under its Securities
Guarantee shall be absolute and unconditional and the liability and obligations
of such Guarantor hereunder shall not be released, discharged, mitigated,
waived, impaired or affected in whole or in part by:
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(a) any lack of validity or enforceability of this Indenture or the
Securities with respect to the Company or any Guarantor or any agreement
or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Indenture Obligations, or any other
amendment or waiver of or any consent to departure from this Indenture,
including any increase in the Indenture Obligations resulting from the
extension of additional credit to the Company or otherwise;
(c) the failure to give notice to the Guarantor of the occurrence of
a Default under the provisions of this Indenture or the Securities;
(d) any taking, release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the Indenture
Obligations;
(e) any failure, omission, delay by or inability on the part of the
Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in this Indenture or the
Securities;
(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or any Guarantor with
or into any other Person, the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the
assets of the Company or any Guarantor, the marshaling of the assets and
liabilities of the Company or any Guarantor, the receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with the creditors, or readjustment of, or other
similar proceedings affecting the Company or any Guarantor, or any of the
assets of any of them;
(g) the assignment of any right, title or interest of the Trustee or
any Holder in this Indenture or the Securities to any other Person; or
(h) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company or a Guarantor, other
than payment in full of the Indenture Obligations; it being the intent of
each Guarantor that its obligations hereunder shall not be discharged
except by payment of all amounts owing pursuant to this Indenture or the
Securities.
The Securities Guarantee of each Guarantor shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Indenture Obligations is rescinded or must otherwise be returned by any Holder
or the Trustee upon the insolvency, bankruptcy
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or reorganization of the Company or otherwise, all as though such payment had
not been made. Each Guarantor further agrees, to the fullest extent that it may
lawfully do so, that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article V of this Indenture
for the purposes of this Securities Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (ii) in the event of any acceleration of such
obligations as provided in Article V of this Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purpose of this Securities Guarantee.
SECTION 1303. Waivers.
(a) Each Guarantor hereby expressly waives (to the extent permitted by
law) notice of the acceptance of its Securities Guarantee and notice of the
existence, renewal, extension or the non-performance, non-payment, or
non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of this Indenture or the Securities or any other
notice whatsoever to or upon the Company or such Guarantor with respect to the
Indenture Obligations. Each Guarantor hereby acknowledges communication to it of
the terms of this Indenture and the Securities and all of the provisions herein
contained and consents to and approves the same. Each Guarantor hereby expressly
waives (to the extent permitted by law) diligence, presentment and protest.
(b) Without prejudice to any of the rights or recourse which the Trustee
or the Holders may have against the Company, each Guarantor hereby expressly
waives (to the extent permitted by law) any right to require the Trustee or the
Holders to:
(1) initiate or exhaust any rights, remedies or recourse against the
Company, any Guarantor or any other Person;
(2) value, realize upon, or dispose of any security of the Company
or any other Person held by the Trustee or the Holders; or
(3) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity;
before requiring, becoming entitled to or demanding payment from such Guarantor
under this Securities Guarantee.
SECTION 1304. Subrogation.
Each Guarantor shall not exercise any rights that it may acquire by way of
subrogation under this Securities Guarantee, by any payment made hereunder or
otherwise, until all the Indenture Obligations shall have been paid in full. If
any amount shall be paid to any Guarantor on account of any such subrogation
rights at any time when all the
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Indenture Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Holders and the Trustees and shall
forthwith be paid to the Trustee, on behalf of the Holders, to be credited and
applied to the Indenture Obligations, whether matured or unmatured.
SECTION 1305. No Waiver; Remedies.
No failure on the part of any Holder or the Trustee to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent
Obligation.
(a) This Securities Guarantee is a continuing guarantee of the payment and
performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and all
other amounts payable under this Securities Guarantee and shall apply to and
secure any ultimate balance due or remaining unpaid to the Trustee or the
Holders under this Indenture or the Securities; and this Securities Guarantee
shall not be considered as wholly or partially satisfied by the payment or
liquidation at any time or from time to time of any sum of money for the time
being due or remaining unpaid to the Trustee or the Holders.
(b) Each Guarantor hereby guarantees that the Indenture Obligations shall
be paid to the Trustee without set-off or counterclaim or other reduction
whatsoever (whether for taxes, withholding or otherwise) in lawful currency of
the United States of America.
(c) Each Guarantor guarantees that the Indenture Obligations shall be paid
strictly in accordance with their terms regardless of any lack of validity or
enforceability of any of such terms or the rights of the Holders with respect
thereto.
(d) Each Guarantor's liability to pay or perform or cause the performance
of the Indenture Obligations under this Securities Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been given
to such Guarantor in the manner prescribed in this Indenture.
SECTION 1307. Subsidiary Guarantors May Consolidate, Etc., on Certain
Terms.
(a) Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor, which
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consolidation, merger, sale or conveyance is otherwise in accordance with the
terms of this Indenture.
(b) Other than as set forth in paragraph (a) of this Section, no
Subsidiary Guarantor may consolidate with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving Person) another Person whether or not
affiliated with such Subsidiary Guarantor unless: (i) subject to the provisions
of Section 1309, the Person formed by or surviving such consolidation or merger
(if other than such Subsidiary Guarantor) assumes all of the obligations of such
Subsidiary Guarantor under this Indenture and its Subsidiary Guarantee, pursuant
to a supplemental indenture in form and substance satisfactory to the Trustee,
(b) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing and (c) immediately after giving
effect to such transaction, the Person formed by or surviving such consolidation
or merger (if other than such Subsidiary Guarantor) or to which such properties
and assets are transferred could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the first paragraph of Section
1010.
SECTION 1308. Additional Guarantors.
The Company will cause each Person that becomes a Domestic Subsidiary, or
any Restricted Subsidiary that guarantees any other Indebtedness of the Company
or of a Domestic Restricted Subsidiary, after the date of this Indenture to
become a Guarantor with respect to the Indenture Obligations by executing and
delivering a supplemental indenture to this Indenture providing for a Securities
Guarantee by such Subsidiary under this Article XIII (or under a separate
guarantee agreement consistent in all material respects with this Article XIII).
The Company shall deliver to the Trustee, together with the supplemental
indenture referred to above, an Opinion of Counsel that such Securities
Guarantee is a legal, valid, binding and enforceable obligation of such
Guarantor, subject to customary local law exceptions and customary exceptions
for bankruptcy and equitable principles.
SECTION 1309. Releases.
(a) In the event of (i) the conveyance, sale, assignment, transfer or
other disposition of all of the Capital Stock of a Subsidiary Guarantor to any
Person (by way of merger, consolidation or otherwise) in compliance with this
Section 1309 and the terms of this Indenture or (ii) a conveyance, sale,
assignment, transfer or other disposition of all or substantially all of the
assets of a Subsidiary Guarantor to any Person (by way of merger, consolidation
or otherwise) in compliance with this Section 1309 and the terms of this
Indenture, then such Subsidiary Guarantor (or Person acquiring such assets in
the event of a sale or other disposition of all of the assets of such Guarantor)
shall be deemed automatically and unconditionally released from and discharged
from all of its obligations under this Article XIII and its Subsidiary Guarantee
without any further action required on the part of the Trustee or any Holder;
provided that, in the event such transaction constitutes an Xxxxx
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Sale, the Net Cash Proceeds of such conveyance, sale, assignment, transfer or
other disposition are applied in accordance with Section 1013 hereof.
(b) Any Subsidiary Guarantor that is designated by the Board of Directors
of the Company as an Unrestricted Subsidiary, or ceases to be a Subsidiary of
the Company in accordance with the terms of this Indenture may, at such time, at
the option of the Board of Directors, be released and relieved of its
obligations under its Securities Guarantee.
(c) Concurrently with the defeasance of the Securities under Section 1202
hereof, or the covenant defeasance of the Securities under Section 1203 hereof,
the Subsidiary Guarantors shall be released from all their obligations under
their Subsidiary Guarantees under this Article XIII.
(d) The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a Company Request accompanied by an Officers'
Certificate certifying as to the compliance with this Section 1306. Any
Subsidiary Guarantor not so released shall remain liable for the full amount of
principal of and interest on the Securities as provided in its Securities
Guarantee.
SECTION 1310. Benefits Acknowledged.
Each Securities Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that its guarantee and waivers pursuant to its Securities Guarantee are
knowingly made in contemplation of such benefits.
SECTION 1311. Severability.
In case any provision of this Securities Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
ARTICLE XIV
SUBORDINATION OF SECURITIES AND SECURITIES GUARANTEES
SECTION 1401. Securities and Securities Guarantees Subordinate to Senior
Indebtedness.
(a) The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article XIV, the indebtedness
represented by the Securities and the payment of the principal of and premium,
if any, and interest on each and all of the
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Securities (but not amounts owing to the Trustee by the Company pursuant to
Section 606 hereof) are hereby expressly made subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness.
(b) Each Guarantor covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article XIV, the indebtedness
represented by the Securities Guarantee of such Guarantor is hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Guarantor Senior Indebtedness of such Guarantor.
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of any payment or distribution of assets of the Company or
any Guarantor to creditors upon any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors, marshaling of assets or
any bankruptcy, insolvency or similar proceedings (each such event, if any, is
herein sometimes referred to as a "Proceeding"), of the Company or any Guarantor
(the Company or such Guarantor being the "Affected Obligor"), then (i) if the
Affected Obligor is the Company, the holders of Senior Indebtedness shall first
be entitled to receive payment in full, in cash or Cash Equivalents, of all
amounts due or to become due on or in respect of such Senior Indebtedness
(including interest accruing after the commencement of any such Proceeding at
the rate specified therein whether or not such interest is an allowed claim in
such proceeding) before the Holders of the Securities are entitled to receive
any payment of principal of and premium, if any, and interest on the Securities
or on account of the purchase or redemption or other acquisition of Securities
by the Company or any Subsidiary of the Company and (ii) if the Affected Obligor
is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor
shall first be entitled to receive payment in full, in cash or Cash Equivalents,
of all amounts due or to become due on or in respect of such Guarantor Senior
Indebtedness (including interest accruing after the commencement of any such
Proceeding at the rate specified therein whether or not such interest is an
allowed claim in such proceeding) before the Holders of the Securities are
entitled to receive any payment or distribution of any kind with respect to the
Securities Guarantee of such Guarantor (any payment on or purchase, redemption
or acquisition of the Securities, referred to in clause (i), and any payment on
a Securities Guarantee, referred to in clause (ii), being, individually and
collectively, a "Securities Payment"), and, to that end, if the Affected Obligor
is the Company, the holders of Senior Indebtedness and, if the Affected Obligor
is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor
(such Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be,
being "Affected Obligor Senior Indebtedness" of such Affected Obligor) shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities
which may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 1402, the Trustee or the Holder of any Security shall have received any
payment or distribution of
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assets of an Affected Obligor of any kind or character, whether in cash,
property or securities, before all Affected Obligor Senior Indebtedness is paid
in full, and if such fact shall, at or prior to the time of such payment, have
been known to the Trustee or the Holder, as the case may be, then such payment
or distribution, except for amounts subject to the claim granted to the Trustee
in Section 606 hereof, shall be held in trust for the holders of Affected
Obligor Senior Indebtedness and shall be paid over or delivered forthwith to the
trustee in bankruptcy or other Person making payment or distribution of assets
of the Affected Obligor for application to the payment of all Affected Obligor
Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Affected Obligor Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of the Affected Obligor
Senior Indebtedness.
For purposes of this Article XIV only, the words "any payment or
distribution of any kind or character, cash, property or securities" shall not
be deemed to include a payment or distribution of equity or subordinated
securities of the Affected Obligor provided for by a plan of reorganization or
readjustment or of any other corporation provided for by such plan of
reorganization or readjustment that, in the case of subordinated securities, are
subordinated in right of payment to all then outstanding Affected Obligor Senior
Indebtedness to at least the same extent as the Securities or Securities
Guarantees, as the case may be, are so subordinated as provided in this Article
XIV.
SECTION 1403. No Payment When Certain Senior Indebtedness in Default.
In the event that any Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Securities Payment shall be made unless and
until such Senior Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of the Designated
Senior Indebtedness or other obligations that are the subject of such Senior
Payment Default shall have been paid in full. For purposes hereof, "Senior
Payment Default" means any default in the payment of principal of or premium, if
any, or interest on, Designated Senior Indebtedness or a default in the payment
of any other obligation under the Designated Senior Indebtedness, when due,
whether at the Stated Maturity of any such payment or by declaration of
acceleration, call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below) shall
have occurred and be continuing, then, upon the receipt by the Company and the
Trustee of written notice of such Senior Nonmonetary Default from the Senior
Credit Facility Agent or from an authorized Person on behalf of any holder of
Designated Senior Indebtedness, no Securities Payment shall be made during the
period (the "Payment Blockage Period") commencing on the date of receipt of such
written notice (the "Blockage Notice") and ending on the earliest of (i) the
179th day after the date of such receipt of the Blockage Notice (the "Initial
Period") unless a Senior Payment Default has occurred and is continuing at the
end of such 179-day period, (ii) the date, if any, on which the Designated
Senior Indebtedness to which such default relates is discharged or such default
is waived or otherwise cured and (iii)
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the date, if any, on which such Payment Blockage Period shall have been
terminated by written notice to the Company or the Trustee from the Senior
Credit Facility Agent or from the Person who gave the Blockage Notice. In any
event, not more than one Payment Blockage Period may be commenced during any
period of 360 consecutive days, and there must be a period of at least 181
consecutive days in each period of 360 consecutive days when no Payment Blockage
Period is in effect. No Senior Nonmonetary Default that existed or was
continuing on the date of commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness initiating such Payment Blockage
Period shall be, or can be, made the basis for the commencement of a subsequent
Payment Blockage Period unless such Senior Nonmonetary Default shall have been
cured or waived for a period of not less than 90 consecutive days. For purposes
hereof, "Senior Nonmonetary Default" means the occurrence or existence of any
event, circumstance, condition or state of facts that, by the terms of any
instrument pursuant to which any Designated Senior Indebtedness is outstanding,
permits one or more holders of such Designated Senior Indebtedness (or a trustee
or agent on behalf of the holders thereof) to declare such Designated Senior
Indebtedness due and payable prior to the date on which it would otherwise
become due and payable, other than a Senior Payment Default. Notwithstanding the
foregoing, the Company and the Guarantors may make Securities Payments without
regard to the foregoing if the Company and the Trustee receive written notice
approving such payment from a representative of such Designated Senior
Indebtedness affected by such Senior Payment Default or Senior Nonmonetary
Default.
In the event that, notwithstanding the foregoing, the Company or any
Guarantor shall make any payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section 1403, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or the Holder,
as the case may be, then such payment shall be held in trust for the holders of
the Affected Obligor Senior Indebtedness and shall be paid over and delivered
forthwith to the holders of the Affected Obligor Senior Indebtedness remaining
unpaid, to the extent necessary to pay in full all the Affected Obligor Senior
Indebtedness.
SECTION 1404. Payment Permitted If No Default.
Nothing contained in this Article XIV or elsewhere in this Indenture or in
any of the Securities shall, at any time except during the pendency of any
Proceeding referred to in Section 1402 or under the conditions described in
Section 1403, prevent (a) the Company or any Guarantor from making Securities
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such payment by the
Holders.
SECTION 1405. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash or Cash
Equivalents, the rights of the Holders of the Securities shall be subrogated to
the rights of the holders of
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such Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of and
premium, if any, and interest on the Securities shall be paid in full. Subject
to the payment in full of all Guarantor Senior Indebtedness in cash or Cash
Equivalents, the rights of the Holders of the Securities shall be subrogated to
the rights of the holders of such Guarantor Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to such
Guarantor Senior Indebtedness until the principal of and premium, if any, and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness or Guarantor Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XIV, and no payments over
pursuant to the provisions of this Article XIV to the holders of Senior
Indebtedness or Guarantor Senior Indebtedness by Holders of the Securities or
the Trustee, shall, as among the Company, the Guarantors, their respective
creditors (other than holders of Senior Indebtedness and the Guarantor Senior
Indebtedness and the Holders of the Securities) be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness. Neither
the Holders of the Securities nor the Trustee shall have any claim against the
holders of the Senior Indebtedness or the Guarantor Senior Indebtedness or the
Senior Credit Facility Agent for any impairment of the subrogation rights herein
granted arising out of any release of Liens securing the Senior Indebtedness or
the Guarantor Senior Indebtedness.
SECTION 1406. Provisions Solely to Define Relative Rights.
The provisions of this Article XIV are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness and Guarantor Senior Indebtedness on the other
hand. Nothing contained in this Article XIV or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company, its
creditors (other than holders of Senior Indebtedness) and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article XIV of the holders of
Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company) to pay to the Holders of the Securities the
principal of and premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) impair,
as among the Guarantors, their creditors (other than holders of Guarantor Senior
Indebtedness) and the Holders of the Securities, the obligation of the
Guarantors, which is absolute and unconditional (and which, subject to the
rights under this Article XIV of the holders of Guarantor Senior Indebtedness,
is intended to rank equally with all other general obligations of the
Guarantors) to pay to the Holders of the Securities the principal of and
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (c) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company (other than the holders of Senior Indebtedness) or the
relative rights against the Guarantors of the Holders of the Securities and
creditors of the Guarantors (other than the Holders of
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Guarantor Senior Indebtedness); or (d) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
XIV of the holders of Senior Indebtedness and Guarantor Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder. The holders of the Senior Indebtedness and the Senior
Credit Facility Agent, as the case may be, shall be entitled to enforce the
provisions of this Article XIV against the Company, the Guarantors, the Holders
of the Securities and the Trustee.
SECTION 1407. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XIV and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness or
Guarantor Senior Indebtedness to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or any Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness or Guarantor Senior Indebtedness, as the case may
be, may, at any time and from time to time, without the consent of or notice to
the Trustee or the Holders of the Securities, without incurring responsibility
to the Trustee or the Holders of the Securities and without impairing or
releasing the subordination provided in this Article XIV or the obligations
hereunder of the Holders of the Securities to the holders of Senior Indebtedness
or Guarantor Senior Indebtedness, as the case may be, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or Guarantor Senior
Indebtedness, as the case may be, or otherwise amend or supplement in any manner
Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be, or any
instrument evidencing the same or any agreement under which Senior Indebtedness
or Guarantor Senior Indebtedness, as the case may be, is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness or any Guarantor Senior Indebtedness, as
the case may be; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness or any Guarantor Senior Indebtedness, as the
case may be; and (iv) exercise or refrain from exercising any rights against the
Company or any Guarantor and any other Person.
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SECTION 1409. Notice to Trustee.
The Company and each Guarantor shall give prompt written notice to the
Trustee of any fact known to the Company or such Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Securities and
of any subsequent cure or waiver thereof. Notwithstanding the provisions of this
Article XIV or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or a holder of Guarantor Senior
Indebtedness or from any trustee or agent therefor; and, prior to the receipt of
any such written notice, the Trustee, shall be entitled in all respects to
assume that no such facts exist, provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of and premium, if any or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness or
a holder of Guarantor Senior Indebtedness (or a trustee or agent therefor) to
establish that such notice has been given by a holder of Senior Indebtedness or
a holder of Guarantor Senior Indebtedness (or a trustee or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness or a holder of Guarantor Senior Indebtedness, as the case may be,
to participate in any payment or distribution pursuant to this Article XIV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or Guarantor
Senior Indebtedness, as the case may be, held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article XIV,
and if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidation
Agent.
Upon any payment or distribution of assets of the Company or any Guarantor
referred to in this Article XIV, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in a Proceeding, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons
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entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness, Guarantor Senior Indebtedness and other indebtedness of the
Company and the Guarantors, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article XIV.
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness or Guarantor Senior Indebtedness and shall not be liable
to any such holders if it shall in good faith mistakenly pay over or distribute
to Holders of Securities or to the Company or to any other Person cash, property
or securities to which any holders of Senior Indebtedness or Guarantor Senior
Indebtedness shall be entitled by virtue of this Article XIV or otherwise. The
Trustee's duties with respect to holders of Senior Indebtedness and Guarantor
Senior Indebtedness are limited to those specifically set forth in this
Indenture, and no implied covenants or obligations shall be construed by any
provision hereof.
SECTION 1412. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XIV with respect to any Senior Indebtedness or
Guarantor Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness or Guarantor Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article XIV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 606.
SECTION 1413. Applicability to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article XIV shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XIV in addition to or in place of the Trustee; provided,
however, that this Section 1413 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1414. Defeasance of this Article XIV.
The subordination of the Securities and the Securities Guarantees provided
by this Article XIV is expressly made subject to the provisions for defeasance
or covenant defeasance in Article XII hereof and, anything herein to the
contrary notwithstanding, upon the effectiveness of any such defeasance or
covenant defeasance, the Securities and the
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Securities Guarantees then outstanding shall thereupon cease to be subordinated
pursuant to this Article XIV.
SECTION 1415. Subordination Provisions Controlling.
Notwithstanding anything to the contrary contained in this Indenture, to
the extent that any provision contained in Articles I (other than Section 101)
through XIII of this Indenture conflicts with any provision contained in Article
XIV (including the definitions of certain terms used in Article XIV) of this
Indenture, the provisions contained in Article XIV of this Indenture shall
govern and control.
This Indenture may be signed in any number of counterparts each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
LES, INC.
By /s/ XXXX XXXXXXXXX
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President & CFO
XXXXXXX ENVIRONMENTAL
SERVICES, INC.
By /s/ XXXX XXXXXXXXX
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President & CFO
XXXXXXX ENVIRONMENTAL SERVICES
(US), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(LONE AND GRASSY MOUNTAIN), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TULSA), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(SAN ANTONIO), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(WICHITA), INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
DELAWARE, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(ROSEMOUNT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(XXXXXX), INC.
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XXXXXXX ENVIRONMENTAL SERVICES
(XXXXXX), INC.
NINTH STREET PROPERTIES, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(SAN XXXX), INC.
CHEMCLEAR, INC. OF LOS ANGELES
USPCI, INC. OF GEORGIA
LES HOLDINGS, INC.
EAST CARBON DEVELOPMENT FINANCIAL
PARTNERS, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(IMPERIAL VALLEY), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(LOKERN), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(NORTH EAST), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(RECOVERY), INC.
CORSAN TRUCKING, INC
XXXXXXX ENVIRONMENTAL SERVICES
(TES), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TG), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TOC), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TS), INC.
2
109
XXXXXXX ENVIRONMENTAL SERVICES
(THERMAL TREATMENT), INC.
GSX CHEMICAL SERVICES OF OHIO, INC.
LEMC, INC.
XXXXXXX CHEMICAL SERVICES, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(ALTAIR), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(BDT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(FS), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(GS), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(CLIVE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(WT), INC.
XXXXXXX XXXX HOLDINGS, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
NASHVILLE, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
BARTOW, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
CALIFORNIA, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
CHATTANOOGA, INC.
3
110
XXXXXXX ENVIRONMENTAL SERVICES OF
ILLINOIS, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
SOUTH CAROLINA, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
WHITE CASTLE, INC.
LES MERGER, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(PUERTO RICO), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(BRIDGEPORT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(DEER PARK), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(BATON ROUGE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(PLAQUEMINE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(CUSTOM TRANSPORT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(LOS ANGELES), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(XXXXXX), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(GLOUCESTER), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(DEER TRAIL), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(MT. PLEASANT), INC.
4
111
XXXXXXX ENVIRONMENTAL SERVICES
(MINNEAPOLIS), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(ARAGONITE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(SUSSEX), INC.
XXXXXXX ENVIRONMENTAL, INC.
By /s/ XXXX XXXXXXXXX
------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President & CFO
DIRT MAGNET, INC.
THE MIDWAY GAS & OIL COMPANY
ELGINT CORP.
SAFETY-KLEEN ENVIROSYSTEMS
COMPANY
SAFETY-KLEEN ENVIROSYSTEMS
COMPANY OF PUERTO RICO, INC.
PETROCON, INC.
5
112
XXXXXXXX ACQUISITION CORP.
SAFETY-KLEEN AVIATION CORP.
SK INSURANCE COMPANY
SK REAL ESTATE, INC.
SAFETY-KLEEN INTERNATIONAL, INC.
SAFETY-KLEEN OIL RECOVERY CO.
SAFETY-KLEEN OIL SERVICES, INC.
THE SOLVENTS RECOVERY SERVICE OF
NEW JERSEY, INC.
By /s/ XXXX XXXXXXXXX
------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President & CFO
SAFETY-KLEEN CORP.
By /s/ XXXXX XXXXXX
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Secretary
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK COMPANY
By /s/ XXXXXX X. XXXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
6
113
Schedule I
SUBSIDIARY GUARANTORS
Xxxxxxx Environmental Services (US), Inc.
Xxxxxxx Environmental Services (Lone and Grassy Mountain), Inc.
Xxxxxxx Environmental Services (Tulsa), Inc.
Xxxxxxx Environmental Services (San Antonio), Inc.
Xxxxxxx Environmental Services (Wichita), Inc.
Xxxxxxx Environmental Services of Delaware, Inc.
Xxxxxxx Environmental Services (Rosemount), Inc.
Xxxxxxx Environmental Services (Xxxxxx), Inc.
Xxxxxxx Environmental Services (Xxxxxx), Inc.
Ninth Street Properties, Inc.
Xxxxxxx Environmental Services (San Xxxx), Inc.
Chemclear, Inc. of Los Angeles
USPCI, Inc. of Georgia
LES Holdings, Inc.
East Carbon Development Financial Partners, Inc.
Xxxxxxx Environmental Services (Imperial Valley), Inc.
Xxxxxxx Environmental Services (Lokern), Inc.
Xxxxxxx Environmental Services (North East), Inc.
Xxxxxxx Environmental Services (Recovery), Inc.
Xxxxxxx Environmental Services (TES), Inc.
Corsan Trucking, Inc.
Xxxxxxx Environmental Services (TG), Inc.
Xxxxxxx Environmental Services (TOC), Inc.
Xxxxxxx Environmental Services (TS), Inc.
Xxxxxxx Environmental Services (Thermal Treatment), Inc.
GSX Chemical Services of Ohio, Inc.
LEMC, Inc.
Xxxxxxx Chemical Services, Inc.
Xxxxxxx Environmental Services (Altair), Inc.
Xxxxxxx Environmental Services (BDT), Inc.
Xxxxxxx Environmental Services (FS), Inc.
Xxxxxxx Environmental Services (GS), Inc.
Xxxxxxx Environmental Services (Clive), Inc.
Xxxxxxx Environmental Services (WT), Inc.
Xxxxxxx XXXX Holdings, Inc.
Xxxxxxx Environmental Services of Nashville, Inc.
Xxxxxxx Environmental Services of Bartow, Inc.
Xxxxxxx Environmental Services of California, Inc.
Xxxxxxx Environmental Services of Chattanooga, Inc.
Xxxxxxx Environmental Services of Illinois, Inc.
7
114
Xxxxxxx Environmental Services of South Carolina, Inc.
Xxxxxxx Environmental Services of White Castle, Inc.
LES Merger, Inc.
Xxxxxxx Environmental Services (Puerto Rico), Inc.
Xxxxxxx Environmental Services (Bridgeport), Inc.
Xxxxxxx Environmental Services (Deer Park), Inc.
Xxxxxxx Environmental Services (Baton Rouge), Inc.
Xxxxxxx Environmental Services (Plaquemine), Inc.
Xxxxxxx Environmental Services (Custom Transport), Inc.
Xxxxxxx Environmental Services (Los Angeles), Inc.
Xxxxxxx Environmental Services (Xxxxxx), Inc.
Xxxxxxx Environmental Services (Gloucester), Inc.
Xxxxxxx Environmental Services (Deer Trail), Inc.
Xxxxxxx Environmental Services (Mt. Pleasant), Inc.
Xxxxxxx Environmental Services (Minneapolis), Inc.
Xxxxxxx Environmental Services (Aragonite), Inc.
Xxxxxxx Environmental Services (Sussex), Inc.
Xxxxxxx Environmental, Inc.
Safety-Kleen Corp.
Dirt Magnet, Inc.
The Midway Gas & Oil Company
Elgint Corp.
Safety-Kleen Envirosystems Company
Safety-Kleen Envirosystems Company of Puerto Rico, Inc.
Petrocon, Inc.
Xxxxxxxx Acquisition Corp.
Safety-Kleen Aviation, Inc.
SK Insurance Company
SK Real Estate, Inc.
Safety-Kleen International, Inc.
Safety-Kleen Oil Recovery Co.
Safety-Kleen Oil Services, Inc.
The Solvents Recovery Service of New Jersey, Inc.
2
115
Exhibit A
[FACE OF SECURITY]
LES, INC.
__ % [Exchange]** Senior Subordinated Note due 2008
CUSIP ______________
No. _______ $_________________
LES, INC., a Delaware corporation (the "Company", which term includes any
successor under the Indenture hereinafter referred to), for value received,
promises to pay to , or its registered assigns, the principal sum of
____________________________________ ($___________), on May 29, 2008.
[Initial Interest Rate: 9 1/4% per annum.]*
[Interest Rate: 9 1/4% per annum.]**
Interest Payment Dates: June 1 and December 1 of each year
commencing December 1, 1998.
Regular Record Dates: May 15 and November 15 of each year.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
Date: LES, INC.
By: __________________________
Title:
A-3
116
(Form of Trustee's Certificate of Authentication)
This is one of the 9 1/4% [Exchange]** Senior Subordinated Notes due 2008
described in the within-mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By: _____________________________
Authorized Signatory
A-4
117
[REVERSE SIDE OF SECURITY]
LES, INC.
9 1/4% Senior Subordinated Note due 2008
1. Principal and Interest.
The Company will pay the principal of this Security set forth on the face
of this Security (or such other amount that may from time to time be indicated
on the records of DTC or its nominee or on the records of the Trustee as
custodian for DTC or its nominee as the result of increases or decreases by
adjustments made on the records of DTC or its nominee or on the records of the
Trustee, as custodian for DTC, in accordance with the rules and procedures of
DTC; provided, however, such amounts may not exceed $400,000,000) on June 1,
2008.
The Company promises to pay interest on the principal amount of this
Security on each Interest Payment Date, as set forth below, at the rate of [9
1/4% per annum (subject to adjustment as provided below)]* [9 1/4% per annum,
except that interest accrued on this Security pursuant to the penultimate
paragraph of this Section 1 for periods prior to the applicable Exchange Date
(as such term is defined in the Registration Rights Agreement referred to below)
will accrue at the rate or rates borne by the Securities from time to time
during such periods].**
Interest will be payable semiannually (to the holders of record of the
Securities (or any predecessor Securities) at the close of business on the June
1 or December 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing December 1, 1998
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated May 29, 1998, among the Company, the
Guarantors and the Initial Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 150th calendar day following the date of original issue of the Securities,
(c) the Exchange Offer (as such term is defined in the Registration Rights
Agreement) is not consummated or a Shelf Registration Statement (as such term is
defined in the Registration Rights Agreement) is not declared
----------
* Include only for Initial Securities.
** Include only for Exchange Securities.
A-5
118
effective on or prior to the 180th calendar day following the date of original
issue of the Securities, or (d) any registration statement required by the
Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically provided in the
Registration Rights Agreement) without being succeeded immediately by an
additional registration statement filed and declared effective, the interest
rate borne by this Security shall be increased by 0.25% per annum for the first
90 days following the 60-day period referred to in clause (a) above, following
the 150-day period referred to in clause (b) above or following the 180-day
period referred to in clause (c) above or following the date on which the
relevant registration statement ceases to be effective in the case of clause (d)
above. Such interest will be increased by an additional 0.25% per annum for each
subsequent 90-day period in the case of clause (a), clause (b), clause (c) or
clause (d) above until such registration default has been cured; provided,
however, that in no event will the interest rate borne by the Securities be
increased by more than 1.50% per annum. Upon the filing of the Exchange Offer
Registration Statement, the effectiveness of the Exchange Offer Registration
Statement, the consummation of the Exchange Offer, the effectiveness of a Shelf
Registration Statement, or the effectiveness of a succeeding registration
statement, as the case may be, the interest rate borne by this Security from the
date of such filing, consummation or effectiveness, as the case may be, will be
reduced to the original interest rate set forth above; provided, however, that,
if after such reduction in interest rate, a different event specified in clause
(a), (b), (c) or (d) above occurs, the interest rate may again be increased
pursuant to the foregoing provisions.]*
Interest on this Security will accrue from the most recent date to which
interest has been paid [on this Security or the Security surrendered in exchange
herefor]** or, if no interest has been paid, from May 29, 1998; provided that,
if there is no existing default in the payment of interest and if this Security
is authenticated between a Regular Record Date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any,
and interest on overdue installments of interest, to the extent lawful, at a
rate per annum equal to the rate of interest applicable to the Securities.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the principal
amount of the Securities on each June 1 and December 1 to the persons who are
Holders (as reflected in the Security Register at the close of business on the
May 15 and November 15 immediately preceding the Interest Payment Date), in each
case, even if the Security is canceled on
----------
* Include only for Initial Securities.
** Include only for Exchange Securities
A-6
119
registration of transfer or registration of exchange after such record date;
provided that, with respect to the payment of principal, the Company will make
payment to the Holder that surrenders this Security to any Paying Agent on or
after June 1, 2008.
The Company will 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. [Payment of the principal of and premium, if any, and
interest on the Securities will be made at the office or agency of the Company
maintained for that purpose in The City of New York (which shall be the
Corporate Finance Department of the Trustee, unless the Company shall designate
and maintain some other office or agency for such purpose), or at such other
office or agency of the Company as may be maintained for such purpose, in lawful
money of the United States of America, or payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register; provided,
however, that all payments to Holders who have given wire transfer instructions
to the Company will be made by wire transfer of immediately available funds to
the accounts specified by such Holder.]* [All payments will be made by wire
transfer of immediately available funds to the accounts specified by the
Holder.]** If a payment date is a date other than a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar upon written notice thereto. The
Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Registrar or co-registrar.
4. Securities Guarantees.
This Security is entitled to the benefits of the Securities Guarantees
made by each of the Guarantors as described in the Indenture, pursuant to which
the Guarantors have irrevocably and unconditionally, jointly and severally,
guaranteed on a senior subordinated basis the punctual payment when due, whether
at Stated Maturity, by acceleration, redemption or otherwise, of all obligations
of the Company under the Indenture and this Security. A Guarantor shall be
released from its Securities Guarantee upon the terms and subject to the
conditions set forth in the Indenture.
----------
* Include for Physical Securities only.
** Include for Restricted Global Security only.
A-7
120
5. Subordination.
This Security and the Securities Guarantees are subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full of all
existing and future Senior Indebtedness and Guarantor Senior Indebtedness. Each
of the Company and the Guarantors agrees, and each Holder by accepting this
Security agrees, to the subordination provisions set forth in the Indenture,
authorizes the Trustee to give them effect and appoints the Trustee as
attorney-in-fact for such purposes.
6. Indenture; Limitations.
The Company issued the Securities under an Indenture dated as of May 29,
1998 (the "Indenture"), among the Company, the Parent, certain domestic
subsidiaries of the Company (the "Subsidiary Guarantors," and together with the
Parent, the "Guarantors") which term will include all successor guarantors under
the Indenture) and The Bank of Nova Scotia Trust Company of New York, as trustee
(the "Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the Indenture,
the terms of the Indenture shall control.
The Securities are general unsecured obligations of the Company.
7. Redemption.
Make-Whole Redemption. The Securities may be redeemed at the option of the
Company in whole or in part, at any time and from time to time, prior to June 1,
2003, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of such Securities or (ii) the sum of the present values of 104.625% of
the principal amount of such Securities and the scheduled payments of interest
thereon through and including June 1, 2003 discounted to such Redemption Date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate plus 50 basis points, together with accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
Optional Redemption. The Securities may be redeemed at the option of the
Company, in whole or in part, at any time and from time to time on or after June
1, 2003, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning June 1,
of each of the years set forth below:
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121
Redemption
Year Price
---- ----------
2003................................... 104.625%
2004................................... 103.083%
2005................................... 101.542%
2006 and thereafter ................... 100.000%
In addition, at any time or from time to time prior to June 1, 2001, the
Company may redeem up to 35% of the sum of (i) the initial aggregate principal
amount of the Securities and (ii) the initial aggregate principal amount of any
Additional Securities with the net proceeds of one or more Public Equity
Offerings at a redemption price equal to 109.25% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date); provided, that,
immediately after giving effect to such redemption, at least $211,300,000
aggregate principal amount of the Securities (including any Additional
Securities) remains outstanding; provided, further, that such redemptions occur
within 90 days of the date of closing of the related Public Equity Offering.
Notice of a redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at such Holder's last address as it appears in the Security Register. Securities
in original denominations larger than $1,000 may be redeemed in part in integral
multiples of $1,000. On and after the Redemption Date, interest ceases to accrue
on Securities or portions of Securities called for redemption, unless the
Company defaults in the payment of the Redemption Price.
8. Repurchase upon a Change in Control and Asset Sales.
(a) Upon the occurrence of a Change of Control, the Company is obligated
to make an offer to purchase all outstanding Securities at a redemption price of
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase and (b) upon Asset Sales, the Company may be obligated
to make offers to purchase Securities with a portion of the Net Cash Proceeds of
such Asset Sales at a redemption price of 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase.
9. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Securities selected for redemption (except the
A-9
122
unredeemed portion of any Security being redeemed in part). Also, it need not
register the transfer or exchange of any Securities for a period of 15 days
before a selection of Securities to be redeemed is made.
10. Persons Deemed Owners.
A Holder may be treated as the owner of a Security for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with the
Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of and premium, if any, and accrued interest on the
Securities to redemption or maturity, the Company will be discharged from the
Indenture and the Securities, except in certain circumstances for certain
sections thereof.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities then Outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Securities
then Outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture contains certain covenants, including, without limitation,
covenants with respect to the following matters: (i) Indebtedness; (ii)
Restricted Payments; (iii) certain Asset Sales; (iv) transactions with
Affiliates; (v) dividends and other payment restrictions affecting Restricted
Subsidiaries; (vi) issuances and sale of Capital Stock of Restricted
Subsidiaries; (vii) designation of Unrestricted Subsidiaries; (viii) Liens; (ix)
merger and certain transfers of assets; and (x) Contingent Obligations. Within
120 days after the end of each fiscal year, the Company must report to the
Trustee on compliance with such limitations.
X-00
000
00. Fall-away Event.
In the event the Securities receive an Investment Grade rating and no
Event of Default or Default shall have occurred and be continuing, upon the
request of the Company, the covenants described in the immediately preceding
paragraph generally will no longer be applicable to the Company and, if
applicable, its Restricted Subsidiaries. Upon the Securities receiving an
Investment Grade rating, covenants relating to (i) Liens securing Indebtedness
and (ii) Sale and Leaseback Transactions will apply to the Company, and if
applicable, the Restricted Subsidiaries.
16. Successor Persons.
When a successor person or other entity assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor person will
be released from those obligations.
17. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Securities then Outstanding may declare all the Securities to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Securities automatically become immediately due and payable. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of at least
a majority in principal amount of the Securities then Outstanding may direct the
Trustee in its exercise of any trust or power.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
19. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
X-00
000
00. 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).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to LES, Inc., 0000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx,
Esq.
A-12
125
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES EXCEPT
PERMANENT OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
______, 2000 the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
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126
Date: ____________________ ________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:____________________ ________________________________________________
NOTICE: To be executed by an executive
officer, general partner, trustee or
similar representative.
A-14
127
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1012 or Section 1013 of the Indenture, check the Box: |_|.
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 1012 or Section 1013 of the Indenture, state the amount (in
original principal amount) below:
$____________________.
Date:
Your Signature: ________________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee: ____________________________
(Signature must be guaranteed by a member of the New York
Stock Exchange or a commercial bank or trust company)
A-15
128
EXHIBIT B
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
The Bank of Nova Scotia
Trust Company of New York
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9 1/4% Senior Subordinated Notes due 2008 of LES, Inc.
Reference is hereby made to the Indenture, dated as of May 29, 1998 (the
"Indenture"), between LES, Inc., as issuer (the "Company"), Xxxxxxx
Environmental Services, Inc. and each of the Subsidiary Guarantors listed on
Schedule I thereto and The Bank of Nova Scotia, Trust Company of New York, 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 Securities which are
evidenced by the Restricted Global Security (CUSIP No._________) and held with
the Depositary in the name of Cede & Co. (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal principal amount of
Securities evidenced by the Regulation S Global Security (CUSIP No. ________).
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(A) if the transfer has been effected pursuant to Rule 903 or Rule 904:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
B-1
129
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) if the transfer is being requested prior to ____________, 1998,
upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel Bank or both (Common Code ____________); and
(B) If the transfer has been effected pursuant to Rule 144, the Securities
have been transferred in a transaction permitted by Rule 144 under the
Securities Act.
Upon giving effect to this request to exchange a beneficial interest in
such Restricted Global Security for a beneficial interest in a Regulation S
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global Security pursuant to
the Indenture and the Securities.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____________, ____ Signature Guarantee
________________________________________
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130
EXHIBIT C
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
The Bank of Nova Scotia
Trust Company of New York
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9 1/4% Senior Subordinated Notes due 2008 of LES, Inc.
Reference is hereby made to the Indenture, dated as of May 29, 1998 (the
"Indenture"), between LES, Inc., as issuer (the "Company"), Xxxxxxx
Environmental Services, Inc. and each of the Subsidiary Guarantors listed on
Schedule I thereto and The Bank of Nova Scotia, Trust Company of New York, 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 the Securities
which are evidenced by the Regulation S Global Security (CUSIP No. _________)
and held with the Depositary in the name of Cede & Co. (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. __________), to be held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer is being effected pursuant to and
in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities 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 a transaction meeting
the requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the U.S. Global Securities pursuant to
the Indenture and the Securities Act.
131
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____________, ____ Signature Guarantee
_____________________________________
C-2
132
EXHIBIT D
FORM OF CERTIFICATE FOR TRANSFER OF U.S. PHYSICAL SECURITIES TO REGULATION S
GLOBAL SECURITY OR RESTRICTED GLOBAL SECURITY
The Bank of Nova Scotia
Trust Company of New York
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9 1/4% Senior Subordinated Notes due 2008 of LES, Inc.
Reference is hereby made to the Indenture, dated as of May 29, 1998 (the
"Indenture"), between LES, Inc., as issuer (the "Company"), Xxxxxxx
Environmental Services, Inc. and each of the Subsidiary Guarantors listed on
Schedule I thereto and The Bank of Nova Scotia, Trust Company of New York, 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 Securities which
are evidenced by a definitive Physical Security (Certificate No. __________,
CUSIP No. __________, in the name of _________________) (the "Transferor"). The
Transferor has requested a transfer of such interest in the Securities to a
Person that will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the [Restricted Global Security CUSIP No.
____________] [Regulation S Global Security (CUSIP No. __________)].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that: [if such request is made for transfer to
the Regulation S Global Security: such transfer has been effected pursuant to
and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act") and accordingly the
Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a person in
the United States;
(B) either:
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
transferee was outside the United States, or
133
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in the
United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; [and]
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; [and
(E) if the transfer is being requested prior to _________,
1998: Upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary through Euroclear or Cedel Bank or both (Common Code
__________);] or
(2) if the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144.]
(3) if such request is made for transfer to the Restricted Global
Security: Such transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act, and, accordingly, the Transferor
hereby further certifies that the Securities are being transferred to a
person that the Transferor reasonably believes is purchasing the
Securities 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 a transaction meeting the requirements of Rule
144A.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
D-2
134
Upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel Bank or both (Common Code_____).
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____________, ____ Signature Guarantee
_____________________________________
D-3
135
EXHIBIT E
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
The Bank of Nova Scotia
Trust Company of New York
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9 1/4% Senior Subordinated Notes due 2008 of LES, Inc.
Reference is hereby made to the Indenture, dated as of May 29, 1998 (the
"Indenture"), between LES, Inc., as issuer (the "Company"), Xxxxxxx
Environmental Services, Inc. and each of the Subsidiary Guarantors listed on
Schedule I thereto and The Bank of Nova Scotia, Trust Company of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
[For transfers: This letter relates to $__________ principal amount of
Securities which are evidenced by a [Restricted Global Security (CUSIP No.
_________) and held with the Depositary in the name of Cede & Co.] [a U.S.
Physical Security (CUSIP No. ________________) registered in the name of
_________________] [and held for the benefit of _________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be transferred to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. _________).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that upon such transfer, (a) a period of at
least two years will have elapsed since May __, 1998, (b) the Beneficial Owner
during the three months preceding the date of such transfer was not an
"affiliate" of the Company (as defined in Rule 144 under the Securities Act),
and it was not acting on behalf of such an affiliate and (c) such Person to whom
such transfer is being made is not an "affiliate" of the Company.]
[For exchanges: This letter relates to $__________ principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No.
__________) and held with the Depositary in the name of [______________] [and
held for the benefit of ]__________________] (the "Beneficial Owner"). The
Beneficial Owner has requested that its beneficial interest in such Securities
be exchanged for a beneficial interest in an equal principal amount of
Securities evidenced by the Regulation S Global Security (CUSIP No. __________).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that [it is located and acquired such
securities outside the United
136
States (if the Restricted Period has ended) and that such transfer is being made
in accordance with Rule 903 or 904 of Regulation S promulgated under the U.S.
Securities Act of 1933][, upon such exchange, (a) it will be the beneficial
owner of such Securities, (b) a period of at least two years will have elapsed
since May 29, 1998 and (c) the Beneficial Owner will not be, and during the
three months preceding the date of such exchange will not have been, an
"affiliate" of the Company (as defined in Rule 144 under the Securities Act),
and it is not acting on behalf of such an affiliate.]
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: [Insert Name of Beneficial Owner]
By: ___________________________________
Name:
Title:
E-2
137
================================================================================
------------------------
Indenture
Dated as of May 29, 1998
------------------------
$325,000,000
9 1/4% Senior Subordinated Notes due 2008
------------------------
LES, INC.,
Issuer,
XXXXXXX ENVIRONMENTAL SERVICES, INC. AND
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE I HERETO,
Guarantors,
and
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
Trustee
================================================================================
138
LES, Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of April 28, 1998
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) ........................................ 607
(a)(2) ........................................ 607
(b) ........................................ 608
ss. 312(c) ........................................ 701
ss. 314(a) ........................................ 703
(a)(4) ........................................ 1008(a)
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(e) ........................................ 102
ss. 315(b) ........................................ 601
ss. 316(a)(last
sentence) ........................................ 101 ("Outstanding")
(a)(1)(A) ........................................ 502, 512
(a)(1)(B) ........................................ 513
(b) ........................................ 508
(c) ........................................ 105(d)
ss. 317(a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 1003
ss. 318(a) ........................................ 111
139
TABLE OF CONTENTS
Page
PARTIES.....................................................................1
RECITALS OF THE COMPANY.....................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.............................................2
SECTION 102. Compliance Certificates and Opinions...................26
SECTION 103. Form of Documents Delivered to Trustee.................26
SECTION 104. Acts of Holders........................................27
SECTION 105. Notices, etc., to Trustee, Company or Guarantors.......28
SECTION 106. Notice to Holders; Waiver..............................29
SECTION 107. Conflict of any Provision of Indenture with
Trust Indenture Act..................................29
SECTION 108. Effect of Headings and Table of Contents...............30
SECTION 109. Successors and Assigns.................................30
SECTION 110. Separability Clause....................................30
SECTION 111. Benefits of Indenture..................................30
SECTION 112. Governing Law..........................................30
SECTION 113. Legal Holidays.........................................30
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally........................................31
SECTION 202. Restrictive Legends....................................32
ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms........................................34
SECTION 302. Denominations..........................................35
SECTION 303. Execution, Authentication, Delivery and Dating.........35
SECTION 304. Temporary Securities...................................36
----------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
140
Page
SECTION 305. Registration, Registration of Transfer and Exchange....37
SECTION 306. Book-Entry Provisions for Restricted Global Security...38
SECTION 307. Special Transfer Provisions............................40
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.......42
SECTION 309. Payment of Interest; Interest Rights Preserved.........43
SECTION 310. Persons Deemed Owners..................................45
SECTION 311. Cancellation...........................................45
SECTION 312. Issuance of Additional Securities......................45
SECTION 313. CUSIP and CINS Numbers.................................45
SECTION 314. Computation of Interest................................46
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................46
SECTION 402. Application of Trust Money.............................47
ARTICLE V
REMEDIES
SECTION 501. Events of Default......................................47
SECTION 502. Acceleration of Maturity; Rescission and Annulment.....49
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...........................................50
SECTION 504. Trustee May File Proofs of Claim.......................51
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities...........................................52
SECTION 506. Application of Money Collected.........................52
SECTION 507. Limitation on Suits....................................52
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................53
SECTION 509. Restoration of Rights and Remedies.....................53
SECTION 510. Rights and Remedies Cumulative.........................54
SECTION 511. Delay or Omission Not Waiver...........................54
SECTION 512. Control by Holders.....................................54
SECTION 513. Waiver of Past Defaults................................55
SECTION 514. Waiver of Stay or Extension Laws.......................55
SECTION 515. Undertaking for Costs..................................55
SECTION 516. No Personal Liability of Directors, Officers,
Employees and Stockholders...........................56
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141
Page
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults.....................................56
SECTION 602. Certain Rights of Trustee..............................56
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities........................................58
SECTION 604. May Hold Securities....................................58
SECTION 605. Money Held in Trust....................................58
SECTION 606. Compensation and Reimbursement.........................58
SECTION 607. Corporate Trustee Required; Eligibility................59
SECTION 608. Resignation and Removal; Appointment of Successor......59
SECTION 609. Acceptance of Appointment by Successor.................61
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.............................................61
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders...........62
SECTION 702. Reports by Trustee.....................................62
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms...62
SECTION 802. Successor Substituted..................................63
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SECURITIES GUARANTEES
SECTION 901. Without Consent of Holders.............................64
SECTION 902. With Consent of Holders................................65
SECTION 903. Execution of Supplemental Indentures...................66
SECTION 904. Effect of Supplemental Indentures......................66
SECTION 905. Conformity with Trust Indenture Act....................66
SECTION 906. Reference in Securities to Supplemental Indentures.....66
iii
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Page
SECTION 907. Notice of Supplemental Indentures......................67
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest...67
SECTION 1002. Maintenance of Office or Agency.......................67
SECTION 1003. Money for Security Payments to Be Held in Trust.......68
SECTION 1004. Corporate Existence...................................69
SECTION 1005. Payment of Taxes and Other Claims.....................69
SECTION 1006. Maintenance of Properties.............................70
SECTION 1007. Insurance.............................................70
SECTION 1008. Statement by Officers As to Default...................70
SECTION 1009. Provision of Reports and Financial Statements.........71
SECTION 1010. Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock......................71
SECTION 1011. Limitation on Restricted Payments.....................72
SECTION 1012. Purchase of Securities upon a Change of Control.......76
SECTION 1013. Limitation on Certain Asset Sales.....................77
SECTION 1014. Limitation on Transactions with Affiliates............79
SECTION 1015. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.......80
SECTION 1016. Limitation on Issuances and Sales of Capital Stock
of Restricted Subsidiaries..........................81
SECTION 1017. Limitation on Liens...................................82
SECTION 1018. Unrestricted Subsidiaries.............................82
SECTION 1019. Limitation on Layering Indebtedness...................83
SECTION 1020. Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries..............................83
SECTION 1021. Limitation on Conduct of Business.....................83
SECTION 1022. Limitation on Incurrence of Contingent Obligations....84
SECTION 1023. Payments for Consent..................................84
SECTION 1024. Limitation on Liens Securing Indebtedness.............84
SECTION 1025. Limitation on Sale and Leaseback Transactions.........84
SECTION 1026. Waiver of Certain Covenants...........................85
SECTION 1027. Fall-Away of Certain Covenants........................85
ARTICLE XI
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Page
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption...................................86
SECTION 1102. Applicability of Article..............................86
SECTION 1103. Election to Redeem; Notice to Trustee.................87
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.....87
SECTION 1105. Notice of Redemption..................................87
SECTION 1106. Deposit of Redemption Price...........................88
SECTION 1107. Securities Payable on Redemption Date.................88
SECTION 1108. Securities Redeemed in Part...........................89
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant
Defeasance..........................................89
SECTION 1202. Defeasance and Discharge..............................89
SECTION 1203. Covenant Defeasance...................................90
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.......90
SECTION 1205. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions....92
SECTION 1206. Reinstatement.........................................93
ARTICLE XIII
SECURITIES GUARANTEES
SECTION 1301. Securities Guarantees.................................93
SECTION 1302. Guaranty Absolute.....................................94
SECTION 1303. Waivers...............................................96
SECTION 1304. Subrogation...........................................96
SECTION 1305. No Waiver; Remedies...................................97
SECTION 1306. Continuing Guaranty; No Right of Set-Off;
Independent Obligation..............................97
SECTION 1307. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms.......................................97
SECTION 1308. Additional Guarantors.................................98
SECTION 1309. Releases..............................................98
v
144
SECTION 1310. Benefits Acknowledged.................................99
SECTION 1311. Severability..........................................99
ARTICLE XIV
SUBORDINATION OF SECURITIES AND SECURITIES GUARANTEES
SECTION 1401. Securities and Securities Guarantees Subordinate
to Senior Indebtedness..............................99
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc.......100
SECTION 1403. No Payment When Certain Senior Indebtedness in
Default............................................101
SECTION 1404. Payment Permitted If No Default......................102
SECTION 1405. Subrogation to Rights of Holders of Senior
Indebtedness.......................................102
SECTION 1406. Provisions Solely to Define Relative Rights..........103
SECTION 1407. Trustee to Effectuate Subordination..................104
SECTION 1408. No Waiver of Subordination Provisions................104
SECTION 1409. Notice to Trustee....................................105
SECTION 1410. Reliance on Judicial Order or Certificate of
Liquidation Agent..................................105
SECTION 1411. Trustee Not Fiduciary for Holders of Senior
Indebtedness.......................................106
SECTION 1412. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.................106
SECTION 1413. Applicability to Paying Agents.......................106
SECTION 1414. Defeasance of this Article XIV.......................106
SECTION 1415. Subordination Provisions Controlling.................107
SCHEDULES
SCHEDULE I - Guarantors
SCHEDULE II - Agreements Pursuant to Section 1015
EXHIBITS
Exhibit A - Form of Security
Exhibit B - Form of Certificate for Exchange or Registration of Transfer from
Restricted Global Security to Regulation S Global Security
Exhibit C - Form of Certificate for Exchange or Registration of Transfer from
Regulation S Global Security to Restricted Global Security
Exhibit D - Form of Certificate for Transfer of U.S. Physical Securities to
Regulation S Global Security or Restricted Global Security
Exhibit E - Form of Certificate for Transfer or Exchange after Two Years
vi
