Exhibit 4.1
EXECUTION COPY
XXXXXXXXX INC.
11.875% Senior Secured Notes due 2011
Unconditionally Guaranteed by
RAVELSTON MANAGEMENT INC. and
504468 N.B. INC.
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INDENTURE
Dated as of March 10, 2003
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WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
THE RAVELSTON CORPORATION LIMITED
SUGRA LIMITED
TABLE OF CONTENTS
Page
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PARTIES......................................................................................................... 1
RECITALS........................................................................................................ 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions....................................................................................... 1
SECTION 1.02. Other Definitions................................................................................. 28
SECTION 1.03. Compliance Certificates and Opinions.............................................................. 29
SECTION 1.04. Form of Documents Delivered to Trustee............................................................ 30
SECTION 1.05. Acts of Holders................................................................................... 30
SECTION 1.06. Notices, etc., to Trustee and the Company......................................................... 31
SECTION 1.07. Notice to Holders; Waiver......................................................................... 31
SECTION 1.08. Conflict with Trust Indenture Act................................................................. 32
SECTION 1.09. Effect of Headings and Table of Contents.......................................................... 32
SECTION 1.10. Successors and Assigns............................................................................ 32
SECTION 1.11. Separability Clause............................................................................... 32
SECTION 1.12. Benefits of Indenture............................................................................. 32
SECTION 1.13. GOVERNING LAW..................................................................................... 32
SECTION 1.14. Legal Holidays.................................................................................... 32
SECTION 1.15. Schedules and Exhibits............................................................................ 33
SECTION 1.16. Counterparts...................................................................................... 33
SECTION 1.17. Jurisdiction and Service of Process............................................................... 33
SECTION 1.18. Judgment Currency................................................................................. 33
ARTICLE II
FORM OF NOTE
SECTION 2.01. Form Generally.................................................................................... 34
SECTION 2.02. Form of Trustee's Certificate of Authentication................................................... 35
SECTION 2.03. Form of Guarantees................................................................................ 35
ARTICLE III
THE NOTES
SECTION 3.01. Execution, Authentication, Delivery and Dating.................................................... 36
SECTION 3.02. Temporary Notes................................................................................... 37
SECTION 3.03. Registration, Registration of Transfer and Exchange............................................... 38
SECTION 3.04. Global Note Provisions............................................................................ 39
SECTION 3.05. Legends........................................................................................... 40
SECTION 3.06. Special Transfer Provisions....................................................................... 40
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SECTION 3.07. Xxxxxxxxx, Xxxxxxxxx, Lost or Stolen Notes........................................................ 43
SECTION 3.08. Payment of Interest; Interest Rights Preserved.................................................... 43
SECTION 3.09. Persons Deemed Owners............................................................................. 45
SECTION 3.10. Cancellation...................................................................................... 45
SECTION 3.11. Computation of Interest........................................................................... 45
SECTION 3.12. [Reserved]........................................................................................ 45
SECTION 3.13. Additional Interest Under Registration Rights Agreements.......................................... 45
ARTICLE IV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 4.01. Company's Option to Effect Defeasance or Covenant Defeasance...................................... 46
SECTION 4.02. Defeasance and Discharge.......................................................................... 46
SECTION 4.03. Covenant Defeasance............................................................................... 46
SECTION 4.04. Conditions to Defeasance or Covenant Defeasance................................................... 47
SECTION 4.05. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions.................................................................. 49
SECTION 4.06. Reinstatement..................................................................................... 49
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default................................................................................. 50
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment................................................ 52
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................... 53
SECTION 5.04. Trustee May File Proofs of Claim.................................................................. 54
SECTION 5.05. Trustee May Enforce Claims Without Possession of Notes............................................ 55
SECTION 5.06. Application of Money Collected.................................................................... 55
SECTION 5.07. Limitation on Suits............................................................................... 55
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest......................... 56
SECTION 5.09. Restoration of Rights and Remedies................................................................ 56
SECTION 5.10. Rights and Remedies Cumulative.................................................................... 56
SECTION 5.11. Delay or Omission Not Waiver...................................................................... 56
SECTION 5.12. Control by Holders................................................................................ 57
SECTION 5.13. Waiver of Past Defaults........................................................................... 57
SECTION 5.14. Undertaking for Costs............................................................................. 57
SECTION 5.15. Waiver of Stay, Extension or Usury Laws........................................................... 57
SECTION 5.16. Remedies Subject to Applicable Law................................................................ 58
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Duties of Trustee................................................................................. 58
SECTION 6.02. Notice of Defaults................................................................................ 59
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SECTION 6.03. Certain Rights of Trustee......................................................................... 59
SECTION 6.04. Trustee Not Responsible for Recitals, Dispositions of Notes or Application
of Proceeds Thereof............................................................................. 60
SECTION 6.05. Trustee and Agents May Hold Notes; Collections; etc............................................... 61
SECTION 6.06. Money Held in Trust............................................................................... 61
SECTION 6.07. Compensation and Indemnification of Trustee and Its Prior Claim................................... 61
SECTION 6.08. Conflicting Interests............................................................................. 62
SECTION 6.09. Corporate Trustee Required; Eligibility........................................................... 62
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee......................................... 62
SECTION 6.11. Acceptance of Appointment by Successor............................................................ 64
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business....................................... 64
SECTION 6.13. Preferential Collection of Claims Against the Company............................................. 65
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders......................................... 65
SECTION 7.02. Disclosure of Names and Addresses of Holders...................................................... 65
SECTION 7.03. Reports by Trustee................................................................................ 65
SECTION 7.04. Reports by the Company............................................................................ 66
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OF ASSETS
SECTION 8.01. Company May Merge, Consolidate, etc., Only on Certain Terms....................................... 67
SECTION 8.02. Successor Substituted............................................................................. 69
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures and Agreements Without Consent of Holders................................. 69
SECTION 9.02. Supplemental Indentures and Agreements with Consent of Holders.................................... 70
SECTION 9.03. Execution of Supplemental Indentures and Agreements............................................... 72
SECTION 9.04. Effect of Supplemental Indentures................................................................. 72
SECTION 9.05. Conformity with Trust Indenture Act............................................................... 72
SECTION 9.06. Reference in Notes to Supplemental Indentures..................................................... 72
SECTION 9.07. Record Date....................................................................................... 72
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest....................................................... 73
SECTION 10.02. Maintenance of Office or Agency.................................................................. 73
SECTION 10.03. Money for Note Payments to be Held in Trust...................................................... 73
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SECTION 10.04. Corporate Existence.............................................................................. 74
SECTION 10.05. Payment of Taxes and Other Claims................................................................ 75
SECTION 10.06. Maintenance of Properties........................................................................ 75
SECTION 10.07. Insurance........................................................................................ 75
SECTION 10.08. Limitation on Indebtedness....................................................................... 76
SECTION 10.09. Limitation on Restricted Payments................................................................ 76
SECTION 10.10. Limitation on Transactions with Affiliates....................................................... 80
SECTION 10.11. Limitation on Liens.............................................................................. 81
SECTION 10.12. Limitation on Issuances of Guarantees of Indebtedness............................................ 82
SECTION 10.13. Limitation on Sale of Assets..................................................................... 83
SECTION 10.14. Purchase of Notes upon a Change of Control....................................................... 89
SECTION 10.15. Limitation on Issuance and Sale of Capital Stock of Restricted
Subsidiaries..................................................................................... 92
SECTION 10.16. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.......................................................................... 92
SECTION 10.17. Provision of Financial Statements................................................................ 93
SECTION 10.18. Statement by Officers as to Default.............................................................. 93
SECTION 10.19. Waiver of Certain Covenants...................................................................... 94
SECTION 10.20. Limitation on the Designation of Unrestricted Subsidiaries....................................... 94
SECTION 10.21. Additional Amounts............................................................................... 94
SECTION 10.22. Covenants of RMI, RCL and Xxxxx.................................................................. 96
SECTION 10.23. Limitation on RMI's Business Activities.......................................................... 96
ARTICLE XI
REDEMPTION OF NOTES
SECTION 11.01. Right of Redemption.............................................................................. 97
SECTION 11.02. Applicability of Article......................................................................... 98
SECTION 11.03. Election to Redeem; Notice to Trustee............................................................ 98
SECTION 11.04. Selection by Trustee of Notes to be Redeemed..................................................... 98
SECTION 11.05. Notice of Redemption............................................................................. 98
SECTION 11.06. Deposit of Redemption Price...................................................................... 99
SECTION 11.07. Notes Payable on Redemption Date................................................................. 99
SECTION 11.08. Notes Redeemed or Purchased in Part.............................................................. 100
ARTICLE XII
SATISFACTION AND DISCHARGE
SECTION 12.01. Satisfaction and Discharge of Indenture.......................................................... 100
SECTION 12.02. Application of Trust Money....................................................................... 101
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ARTICLE XIII
GUARANTEES
SECTION 13.01. Guarantees....................................................................................... 101
SECTION 13.02. Continuing Guarantee; No Right of Set-Off; Independent Obligation................................ 102
SECTION 13.03. Guarantees Absolute.............................................................................. 102
SECTION 13.04. Right to Demand Full Performance................................................................. 104
SECTION 13.05. Waivers.......................................................................................... 105
SECTION 13.06. Note Guarantors Remain Obligated in Event the Company Is No Longer
Obligated to Discharge Indenture Obligations..................................................... 105
SECTION 13.07. Waiver of Rights................................................................................. 105
SECTION 13.08. Guarantees Are in Addition to Other Security..................................................... 106
SECTION 13.09. Release of Security Interests.................................................................... 106
SECTION 13.10. No Bar to Further Actions........................................................................ 106
SECTION 13.11. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies.............. 106
SECTION 13.12. Trustee's Duties; Notice to Trustee.............................................................. 107
SECTION 13.13. Successors and Assigns........................................................................... 107
SECTION 13.14. Release of Guarantee............................................................................. 107
SECTION 13.15. Execution of Guarantees.......................................................................... 108
SECTION 13.16. Payment Permitted by Note Guarantors if No Default............................................... 108
ARTICLE XIV
SECURITY
SECTION 14.01. Security......................................................................................... 108
SECTION 14.02. Additional Security.............................................................................. 109
SECTION 14.03. Recording and Opinions........................................................................... 109
SECTION 14.04. Release and Disposition of Collateral............................................................ 110
SECTION 14.05. Enforcement of Claims Against Collateral......................................................... 112
SECTION 14.06. Authorization of Actions To Be Taken by the Trustee.............................................. 112
SIGNATURES...................................................................................................... 114
SCHEDULE 1 - Permitted Indebtedness
EXHIBIT A - Form of Note
EXHIBIT B - Form of Transfer Certificate for Transfer to QIB
EXHIBIT C - Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S
EXHIBIT D - Form of Rule 144 Certification
EXHIBIT E - Form of Intercreditor Agreement
EXHIBIT F - International Subordination Agreement
EXHIBIT G - RMI Subordination Agreement
EXHIBIT H - Security Agreement
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CROSS-REFERENCE TABLE
TRUST INDENTURE ACT
SECTION INDENTURE SECTION
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310 (a) (1) ..................................................... 6.09
(a) (2) ..................................................... 6.09
(a) (5) ..................................................... 6.11; 6.12
(b) ..................................................... 6.08; 6.10
311 (a) ..................................................... 6.13
(b) ..................................................... 6.13
312 (a) ..................................................... 7.01
(c) ..................................................... 7.02
313 (a) ..................................................... 7.03
(c) ..................................................... 7.03
314 (a) (1) ..................................................... 7.04(a)
(a) (2) ..................................................... 7.04(b)
(a) (3) ..................................................... 7.04(c)
(a) (4) ..................................................... 10.18
(b) (1) ..................................................... 14.03(a)
(b) (2) ..................................................... 14.03(b)
(c) (1) ..................................................... 1.03
(c) (2) ..................................................... 1.03
(e) ..................................................... 1.03
315 (a) ..................................................... 6.01(b)
(b) ..................................................... 6.02
(c) ..................................................... 6.01(a)
(d) ..................................................... 6.01(c)
(e) ..................................................... 5.14
316 (a) (last sentence) ............................................... 1.01 ("Outstanding")
(a) (1) (A) ..................................................... 5.12
(a) (1) (B) ..................................................... 5.13
(b) ..................................................... 5.08
(c) ..................................................... 9.07
317 (a) (1) ..................................................... 5.03
(a) (2) ..................................................... 5.04
(b) ..................................................... 10.03
318 (a) ..................................................... 1.08
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
vi
INDENTURE, dated as of March 10, 2003, among XXXXXXXXX INC., a
corporation incorporated under the Canada Business Corporation Act (as more
fully defined below, the "Company"), RAVELSTON MANAGEMENT INC., a corporation
incorporated under the laws of the Province of Ontario, as guarantor ("RMI"),
504468 N.B. INC., an indirect wholly owned subsidiary of the Company organized
under the laws of the Province of New Brunswick, as guarantor ("NBI" and,
together with RMI, as more fully defined below, the "Note Guarantors"), THE
RAVELSTON CORPORATION LIMITED, a corporation incorporated under the laws of the
Province of Ontario ("RCL"), SUGRA LIMITED, a wholly owned subsidiary of the
Company organized under the laws of the Province of Ontario ("Sugra"), and
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its senior secured notes, to be
issued pursuant to Articles II and III hereof or a supplemental indenture (each
a "Note" and collectively the "Notes").
Each of the Note Guarantors has duly authorized the issuance
of a guarantee (the "Guarantee") of the Notes, of substantially the tenor as
hereinafter set forth, and to provide therefor, each of the Note Guarantors has
duly authorized the execution and delivery of this Indenture in its capacity as
a Note Guarantor hereunder.
Each of RCL and Xxxxx has duly authorized the execution and
delivery of this Indenture to provide certain covenants with respect to the
Notes.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Notes, when executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the Company and (ii)
this Indenture a valid agreement of the Company, RCL, Sugra and the Note
Guarantors in accordance with the terms of this Indenture.
NOW, THEREFORE, in consideration of the premises and the
purchase of the Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. 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;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(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; and
(e) all references to Cdn. $ shall refer to the lawful
currency of Canada and all references to $, including U.S. dollars or
United States dollars, shall refer to the lawful currency of the United
States of America. In all events, all payments to be made hereunder
shall be made in United States dollars.
The following terms shall have the meanings set forth in this
Section:
"Acceleration Right" means a right, which at the time is
immediately exercisable (without further notice or lapse of time), by the
holders or a trustee to cause the acceleration of the maturity of Indebtedness
of the Company or a Restricted Subsidiary having an aggregate principal amount
outstanding of at least $2,500,000.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) (i) existing at the time such Person
becomes a Restricted Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition. Acquired Indebtedness will be deemed
to be Incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Restricted Subsidiary.
"Additional Note Board Resolutions" means resolutions that are
duly adopted by the Board of Directors of the Company and delivered to the
Trustee in an Officers' Certificate providing for the issuance of Additional
Notes.
"Additional Note Supplemental Indenture" means a supplement to
this Indenture duly executed and delivered by the Company, the Note Guarantors,
RCL, Sugra and the Trustee pursuant to Article IX providing for the issuance of
Additional Notes.
"Additional Notes" means additional Notes of up to an amount
equal to the difference between (i) $150 million and (ii) the aggregate
principal amount of Notes originally issued as of the Issue Date, such
difference to exclude the aggregate principal amount of any replacement Notes
and any Exchange Notes as specified in the relevant Additional Note Board
Resolutions or Additional Note Supplemental Indenture issued therefor in
accordance with this Indenture.
2
"Adjusted Net Cash Flow" means, for any period, the Net Cash
Flow plus the Annual Support Amount.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person or (ii) any other
Person that owns, directly or indirectly, 10% or more of such Person's equity
ownership or Voting Stock or any officer or director of any such Person, or
other Person or, with respect to any natural Person, any person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. 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 ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means the relevant agent bank under any Credit
Facility established by the Company, and such agent bank's successors and
assigns.
"Annual Support Amount" has the meaning set forth in the
Support Agreement.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
amalgamation, consolidation or sale and leaseback transaction but not the grant
of a pledge or security interest) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (i) any Capital Stock
of any Restricted Subsidiary; (ii) all or substantially all of the properties
and assets of any division or line of business of the Company or any of its
Restricted Subsidiaries; or (iii) any other properties or assets (other than
cash) 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 (A) any transfer of properties and assets, in a single
transaction or series of related transactions, that is governed by the
provisions of Article VIII, (B) any transfer of properties and assets from any
Restricted Subsidiary to the Company in accordance with the terms of this
Indenture, (C) any transfer of properties and assets, in a single transaction or
series of related transactions, having a market value of less than $1,000,000
(it being understood that, if the market value of the properties or assets being
transferred exceeds $1,000,000, the entire value and not just the portion in
excess of $1,000,000 shall be deemed to have been the subject of an Asset Sale),
(D) any transfer of properties and assets which are obsolete (in the case of
equipment) to the Company's and its Restricted Subsidiaries' businesses, (E) any
transfer of properties and assets to any Restricted Subsidiary, (F) any transfer
of properties and assets from any Restricted Subsidiary to any other Restricted
Subsidiary, and (G) any release of the Senior Notes Collateral permitted under
and made in accordance with the provisions hereof or of the Security Documents.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the product of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
3
"Bankruptcy Law" means Title Eleven of the United States Code,
as amended, or any similar United States federal or state or foreign law
(including, without limitation, the Bankruptcy and Insolvency Act (Canada) and
the Companies' Creditors Arrangement Act (Canada)) relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, consolidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by
an Officer of the Company to have been duly adopted by such Board of Directors
of the Company or a duly authorized committee of such board 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 which is not a day on which banking institutions in The City of New
York, or the city in which the principal corporate trust office of the Trustee
is located (initially Wilmington, Delaware), are authorized or obligated by law
or executive order to close.
"Business Opportunities Agreement" means the Business
Opportunities Agreement dated as of February 7, 1996, between the Company and
Xxxxxxxxx International and any amendment, modification or supplement thereto or
restatement thereof and any similar agreements entered into after the date of
the original issuance of the Notes in accordance with the terms of this
Indenture.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its subsidiaries on a consolidated basis under any capital
lease of real or personal property, which, in accordance with GAAP, has been
recorded as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock and options, warrants or other rights to acquire such
Person's capital stock.
"Cash Equivalents" means (i) any evidence of Indebtedness with
a maturity of 180 days 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); (ii) certificates of deposit or acceptances with a
maturity of 180 days or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of not less than $500,000,000; (iii) commercial paper with a maturity of
180 days or less issued by a corporation that is not an Affiliate of the Company
organized under the laws of any state of the United States or the District of
Columbia and rated A-1 (or higher) according to S&P or P-1 (or higher) according
to Xxxxx'x or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000; and (v) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
4
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within 180 days from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions with Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985.
"Certificated Note" means any Note issued in registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A, with appropriate legends as specified in Section 3.05 and
Exhibit A.
"Change of Control" means the occurrence of any of the
following:
(a) there is a report filed on Schedule 13D, 14D-1 or
14D-1F (or any successor schedule, form or report) pursuant to the
Exchange Act, disclosing that any person (for purposes of this
definition, as the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act or any successor provision to either of
the foregoing), other than any person consisting solely of Xxxx Xxxxx
(or his heirs, executors or legal representatives) and his Affiliates,
has become the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of Voting Stock representing 50% or
more of the total voting power attached to all Voting Stock of the
Company or RMI then outstanding; provided, however, that a person shall
not be deemed to be the beneficial owner of, or to own beneficially,
(i) any securities tendered pursuant to a tender or exchange offer made
by or on behalf of such person or any of such person's Affiliates until
such tendered securities are accepted for purchase or exchange
thereunder, or (ii) any securities if such beneficial ownership (A)
arises solely as a result of a revocable proxy delivered in response to
a proxy or consent solicitation made pursuant to applicable law, and
(B) is not also then reportable on Schedule 13D (or any successor
schedule) under the Exchange Act;
(b) there is a report filed or required to be filed with
any securities commission or securities regulatory authority in Canada,
disclosing (expressly or otherwise) that any offeror (as the term
"offeror" is defined in Section 89(1) of the Securities Act (Ontario)
for the purpose of Section 101 of such Securities Act or any successor
provision of the foregoing and which term shall include, for greater
certainty, any person who directly or indirectly acquires beneficial
ownership within the meaning of such Securities Act of, or control or
direction over, voting or equity securities of the Company), other than
any person consisting solely of Xxxx Xxxxx (or his heirs, executors or
legal representatives) and his Affiliates, has directly or indirectly
acquired beneficial ownership (within the meaning of the Securities Act
(Ontario)) of, or the power to exercise control or direction over,
voting or equity securities, or securities convertible into voting or
equity securities, of the Company that together with such offeror's
securities (as the term "offeror's securities" is defined in Section
89(1) of the Securities Act (Ontario) or any successor provision
thereto in relation to the voting or equity shares of the Company)
would constitute Voting Stock of the Company representing 50% or
5
more of the total voting power attached to all Voting Stock of the
Company then outstanding;
(c) any person, other than any person consisting solely
of Xxxx Xxxxx (or his heirs, executors or legal representatives) and
his Affiliates, directly or indirectly acquires beneficial ownership
(within the meaning of the Securities Act (Ontario)) of, or the power
to exercise control or direction over, voting or equity securities, or
securities convertible into voting or equity securities, of RMI that
together with such person's securities (the term "person's securities"
to have the same meaning as "offeror's securities" as defined in
Section 89(1) of the Securities Act (Ontario) or any successor
provision thereto in relation to the voting or equity shares of the
RMI) would constitute Voting Stock of RMI representing 50% or more of
the total voting power attached to all Voting Stock of RMI then
outstanding;
(d) there is consummated a consolidation (involving a
business combination), merger or amalgamation of the Company or RMI, as
the case may be, (i) in which the Company or RMI, as the case may be,
is not the continuing or surviving corporation or (ii) pursuant to
which any Voting Stock of the Company or RMI, as the case may be, would
be reclassified, changed or converted into or exchanged for cash,
securities or other property, other than (in each case) a
consolidation, merger or amalgamation of the Company or RMI, as the
case may be, in which the holders of the Voting Stock of the Company or
RMI, as the case may be, immediately prior to the consolidation, merger
or amalgamation have, directly or indirectly, 50% or more of the Voting
Stock of the continuing or surviving corporation immediately after such
transaction;
(e) during any period of 12 consecutive months,
individuals who at the beginning of such period constituted the Board
of Directors of the Company or RMI (together with any new directors
whose election by such Board of Directors, or whose nomination for
election by the stockholders of the Company or RMI, as the case may be,
was approved by a vote of at least a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of such Board
of Directors then in office; or
(f) Xxxx Xxxxx (or his heirs, executors and legal
representatives) and his Affiliates cease to beneficially own and
control the voting of, directly or indirectly, Voting Stock of the
Company or RMI representing a greater percentage of the total voting
power attached to the Voting Stock of the Company or RMI than the
percentage beneficially owned and controlled, directly or indirectly,
by any other single shareholder of the Company or RMI together with its
Affiliates (a "Designated Transaction") and there shall occur a Rating
Decline.
For purposes hereof, "Rating Decline" means an event that will
be deemed to have occurred if, on any date within the period (the "Rating
Period") beginning on the date (the "Reference Date") of the earlier to occur of
(A) the first public announcement by the Company or any other Person of an
intention to effect any Designated Transaction and (B) the occurrence of such
Designated Transaction, and ending on the date 90 days thereafter, either of the
6
following events has occurred: (1) the Notes (or any other securities of the
Company which are rated by a Rating Agency on the date which is 61 days prior to
the Reference Date (the "Rating Date")) shall be rated by any Rating Agency at
any time during the Rating Period at a rating which is lower than the rating of
the Notes (or such other securities of the Company, as the case may be) by such
Rating Agency on the Rating Date by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories) or (2) any Rating
Agency shall have withdrawn its rating of the Notes (or such other securities of
the Company, as the case may be) during the Rating Period.
"Class A Common Stock" means the Class A common stock, par
value $0.01 per share, of Xxxxxxxxx International.
"Class B Common Stock" means the Class B common stock, par
value $0.01 per share, of Xxxxxxxxx International.
"Class B Shares" means the 14,990,000 shares of Class B Common
Stock pledged pursuant to the Security Agreement as security for the Company's
obligations under the Notes and NBI's obligations under the NBI Guarantee, as
such number may be adjusted from time to time as permitted by this Indenture or
the Security Agreement.
"Code" means the Internal Revenue of 1986, as amended.
"Collateral" means any property, assets, proceeds or other
items that may be pledged as security for the Notes, whether pursuant to Section
10.11, Article XIV or otherwise.
"Collateral Account" means a collateral account established by
the Company with the Collateral Agent or another financial institution pursuant
to and in accordance with the Security Agreement.
"Collateral Agent" means the collateral agent under the
Indenture, the Intercreditor Agreement and the Security Agreement, which
initially shall be the Trustee, acting in its capacity as Collateral Agent under
such agreements on behalf of and for the benefit of the Trustee and the Holders.
"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 Xxxxxxxxx Inc., a corporation incorporated
under the Canada Business Corporation Act, until a successor Person shall have
become such pursuant to Article VIII of this Indenture and thereafter "Company"
shall mean such successor Person. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310 through 317
as they are applicable to the Company, the term "Company" shall include any
other obligor with respect to the Notes for purposes of complying with such
provisions, including any Note Guarantor.
7
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board, its Vice Chairman, its President or a Vice President (regardless of Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and in form and substance
reasonably satisfactory to the Trustee and delivered to the Trustee.
"Consolidated Assets" means, with respect to the Company, the
total assets shown on the balance sheet of the Company and its Restricted
Subsidiaries, as determined on a consolidated basis in accordance with GAAP, as
of the Company's latest full fiscal quarter.
"Consolidated Interest Expense" means, with respect to any
period, the sum of (i) the interest expense of the Company and the Restricted
Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP (other than any dividends paid by the Company on the Series II
Preferred Shares and Series III Preferred Shares or any Capital Stock issued in
replacement therefor), including, without limitation, (a) amortization of debt
discount, (b) the net payments, if any, under interest rate contracts (including
amortization of discounts), (c) the interest portion of any deferred payment
obligation and (d) accrued interest, plus (ii) the interest component of Capital
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the
Company and the Restricted Subsidiaries during such period, and all capitalized
interest of the Company and the Restricted Subsidiaries, in each case as
determined on a Consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means the common and preferred
stockholders' equity of the Company and its Restricted Subsidiaries (exclusive
of any redeemable capital stock), as determined on a Consolidated basis and in
accordance with GAAP.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries if and
to the extent the accounts of such Person and each of its subsidiaries would
normally be consolidated with those of such Person, all in accordance with GAAP;
provided, however, that the accounts of any Unrestricted Subsidiary shall not be
consolidated with the Company but instead the interest of the Company or any
Restricted Subsidiary therein will be accounted for as an investment on an
equity basis. The term "Consolidated" shall have a correlative meaning.
"Contribution Agreement" means the contribution agreement
among RCL, RMI and the Company to be dated the date hereof.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000.
"Coverage Ratio" means, with respect to the Company and its
Restricted Subsidiaries, the ratio of (x) the sum of Adjusted Net Cash Flow and
Consolidated Interest Expense, to (y) the Consolidated Interest Expense for the
preceding four quarter period.
"Credit Facility" means an agreement that the Company and NBI
may enter into with one or more Canadian chartered banks and other financial
institutions with respect to a
8
credit facility providing for up to Cdn. $15 million in borrowings by the
Company and NBI on a revolving line of credit basis, which borrowings may (i) at
the option of the Company and subject to such conditions as may be set forth in
such agreement, be converted into a term loan having an Average Life to Stated
Maturity and Stated Maturity sooner than those of the Notes, provided that at
the time of such conversion no Default or Event of Default under the Notes or
the Credit Facility has occurred and is continuing, and (ii) be secured by a
first priority lien on any of the assets, properties and rights of the Company
or NBI not pledged as collateral for the Notes pursuant to the Security
Agreement, as such credit agreement may be amended, amended and restated,
renewed, extended, substituted, refinanced, restructured, replaced,
supplemented, waived, deferred or otherwise modified from time to time, in each
case whether with the same and/or different lenders, and also including all
related guarantees, security or pledge arrangements, hedging arrangements and
other instruments and agreements executed in connection therewith; provided
further that the Agent, any collateral agent and each lender under such Credit
Facility shall, concurrently with the execution and delivery of such credit
agreement have executed and delivered an Intercreditor Agreement.
"Currency Agreements" means one or more of the following
agreements which shall be entered into with one or more financial institutions:
foreign exchange contracts, currency swap agreements or other similar agreements
or arrangements designed to protect against fluctuations in currency values.
"Current Market Price" means, with respect to any share of
Class A Common Stock or Class B Common Stock of Xxxxxxxxx International on any
date, the simple average of the daily closing prices for the 45 consecutive
Trading Days ending on the date of determination or the date on which any of the
Pledged Share Collateral is to be released as permitted under Section
14.04(a)(ii) or (v) of this Indenture, as the context requires. The closing
price for each day shall be the last reported sales price of the Class A Common
Stock or, in case no such reported sale takes place on such date, the average of
the reported closing bid and asked prices of the Class A Common Stock in either
case on the New York Stock Exchange (the "NYSE") or, if the Class A Common Stock
is not listed or admitted to trading on the NYSE, on the principal national
securities exchange on which the Class A Common Stock is listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, the closing sales price of the Class A Common Stock as quoted by
NASDAQ or, in case no reported sale takes place, the average of the closing bid
and asked prices as quoted by NASDAQ or any comparable system or, if the Class A
Common Stock is not quoted on NASDAQ or any comparable system, the closing sales
price or, in case no reported sale takes place, the average of the closing bid
and asked prices, as furnished by any two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose. If no such prices are available, the Current Market Price per share
shall be the fair value of a share of Class A Common Stock as determined by the
Independent Directors of the Company.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Class A Shares" means the 10,108,302 Class A
Common Stock pledged as security for the Company's obligations under the Notes
pursuant to the Security
9
Agreement, as such number may be adjusted from time to time as permitted by this
Indenture or the Security Agreement.
"Designated Transaction" shall have the meaning assigned to
such term in paragraph (f) of the "Change of Control" definition.
"Distribution Compliance Period" means, in respect of any
Regulation S Global Note, the 40 consecutive days beginning on and including the
later of (a) the day on which any Notes represented thereby are offered to
persons other than distributors (as defined in Regulation S under the Securities
Act) pursuant to Regulation S and (b) the issue date for such Notes.
"Dividend Offset Amount" means the excess of any Net Dividend
Amount received by the Company and NBI in the relevant fiscal year over $4.65
million.
"Dollar Equivalent" means, with respect to any monetary amount
in a currency other than U.S. dollars, at any time of determination thereof, the
amount of U.S. dollars obtained by converting such foreign currency involved in
such computation into U.S. dollars at the spot rate for the purchase of U.S.
dollars with the applicable foreign currency as published in The Wall Street
Journal in the "Exchange Rates" column under the heading "Currency Trading" on
the date two Business Days prior to such determination.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means debt securities of the Company,
guaranteed by Xxxxxxxxx International, substantially identical in all material
respects to the Notes (except that the additional interest provisions and the
transfer restrictions pertaining to the Notes will be modified or eliminated, as
appropriate), to be issued pursuant to this Indenture.
"Exchange Offer Registration Statement" shall have the meaning
assigned to such term in the Issue Date Registration Rights Agreement and any
other Registration Rights Agreement.
"Floor Amount" means $14,000,000 in each fiscal year, less (i)
the aggregate amount of management fees paid in cash by Xxxxxxxxx International
and its subsidiaries directly to the Company or to its Wholly Owned Restricted
Subsidiaries in such fiscal year, and (ii) any Dividend Offset Amount in such
fiscal year. With respect to any period that is less than a fiscal year, the
Floor Amount shall be calculated pro rata by reference to the number of days in
such period, computed on the basis of a 360-day year of twelve 30-day months.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in Canada, consistently applied, which
are in effect on the date of this Indenture.
10
"Global Note" means any Note issued in registered certificated
form to DTC (or its nominee), as depositary for the beneficial owners thereof,
which shall be substantially in the form of Exhibit A, with appropriate legends
as specified in Section 3.05 and Exhibit A.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
"Indebtedness" guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness (or to indemnify another Person
for the costs thereof), (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to, or in any other manner
invest in, the debtor (including any agreement to pay for property or services
without requiring that such property be received or such services be rendered),
(iv) to maintain working capital or equity capital of the debtor, or otherwise
to maintain the net worth, solvency or other financial condition of the debtor,
or (v) otherwise to assure a creditor against loss, provided that the term
"guarantee" shall not include endorsements for collection or deposit, in either
case in the ordinary course of business.
"Guarantee Obligations" means the obligations of the
Guarantors under the Indenture, the Notes and the Guarantees to pay principal,
premium, if any, and interest when due and payable, and all other amounts due or
to become due under or in connection with this Indenture and the Notes, and the
performance of all other obligations to the Trustee, the Paying Agent and the
Holders under this Indenture and the Notes, according to the terms thereof.
"Guarantees" means the RMI Guarantee and the NBI Guarantee
and, if the context requires, the guarantee by any Restricted Subsidiary of the
Indenture Obligations.
"HCPH" means Xxxxxxxxx Canadian Publishing Holdings Co., a
subsidiary of Xxxxxxxxx International organized under the laws of the Province
of Nova Scotia.
"Holder" means a Person in whose name a Note is registered in
the Note Register.
"Xxxxxxxxx International" means Xxxxxxxxx International Inc.,
a corporation incorporated under the laws of Delaware.
"Incur" means create, issue, assume, guarantee or otherwise in
any manner become directly or indirectly liable for or with respect to or
otherwise incur.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (or other obligations to former
owners of acquired businesses), excluding any trade payables and other accrued
current liabilities arising in the ordinary course of business, but including,
without limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (ii) all obligations of such
11
Person evidenced by bonds, notes, debentures or other similar instruments, (iii)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
obligations under Interest Rate Agreements and Currency Agreements of such
Person related to the settlement or termination of those agreements as of the
date of determination, (v) all Capital Lease Obligations of such Person, (vi)
all Indebtedness referred to in clauses (i) through (v) above of other Persons
and all dividends of other Persons, the payment of which is secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien, upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all
Redeemable Capital Stock and (without duplication) all Preferred Stock of
Restricted Subsidiaries other than Preferred Stock held by Restricted
Subsidiaries or the Company, valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends,
and (ix) any amendment, supplement, modification, deferral, renewal, extension,
refunding or refinancing of any Indebtedness of the types referred to in clauses
(i) through (viii) above. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock or Preferred Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock or Preferred Stock as if such Redeemable Capital Stock
or Preferred Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Redeemable Capital Stock or
Preferred Stock, such fair market value to be determined in good faith by the
Board of Directors of such Person.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) 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 and shall include the terms of
the Notes established as contemplated by Section 2.01.
"Indenture Obligations" means the obligations of the Company
under this Indenture or under the Notes to pay principal, premium, if any, and
interest when due and payable, and all other amounts due or to become due under
or in connection with this Indenture and the Notes, and the performance of all
other obligations to the Trustee, the Paying Agent and the Holders under this
Indenture and the Notes, according to the terms thereof.
"Independent Director" means a member of the board of
directors of a Person that is not an officer, employee or former officer or
employee of such Person or one of its Affiliates and, with respect to any
transaction or series of related transactions, 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 related transactions
(including for such purpose the interest of any other Person with respect to
whom such director is also a director, officer or employee).
"Intercreditor Agreement" means an intercreditor agreement
among the Trustee, the Collateral Agent, the Agent, and any collateral agent and
lenders under the Credit Facility, substantially in the form attached as Exhibit
E to this Indenture; provided, however that (i) any
12
variations from Exhibit E, taken as a whole, shall not be materially less
favorable to the Trustee, Collateral Agent and the Holders than the terms and
conditions reflected in Exhibit E and (ii) the Company and the Note Guarantors
shall, at the time such Intercreditor Agreement is entered into, have delivered
to the Trustee and the Collateral Agent an Opinion of Counsel confirming the
matters set forth in clause (i) of this proviso and such other matters as this
Indenture may require and as the Trustee or Collateral Agent may request.
"Interest Payment Date" means the Stated Maturity of a regular
installment of interest on the Notes or the Special Payment Date with respect to
Defaulted Interest.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into from time to time with one or more
financial institutions: interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements)
and/or other types of interest rate hedging agreements.
"International Intercompany Note" means that certain Amended
Promissory Note dated as of the Issue Date from NBI to Xxxxxxxxx International
in the principal amount of $20,349,216.49 (being the Indebtedness owed by NBI
after giving effect to the offset, in the form of the purchase price payable by
Xxxxxxxxx International to NBI in respect of the Share Cancellation Transaction,
against the original amount of Indebtedness owed by NBI to Xxxxxxxxx
International prior to the Issue Date, plus accrued and unpaid interest thereon
through the Issue Date). The International Intercompany Note (x) shall (i) be
deemed to include any promissory note(s) issued by NBI to Xxxxxxxxx
International from time to time in payment of interest accrued on the Amended
Promissory Note (and on any such notes previously issued in payment of interest)
and (ii) have (A) a Stated Maturity occurring later than the Stated Maturity of
the Notes and (B) an Average Life to Stated Maturity greater than the Average
Life to Stated Maturity of the Notes, and (y) may be assigned by Xxxxxxxxx
International to any of its Affiliates, provided that no such assignment may be
made as an offset against any payments due by Xxxxxxxxx International or HCPH to
RMI under the Services Agreements, provided further that any such Affiliate
assignee of the International Intercompany Note shall agree to be bound by the
International Subordination Agreement with the same effect as if it had
originally been a party thereto.
"International Subordination Agreement" means a Subordination
Agreement in the form attached hereto as Exhibit F whereby the Company, NBI and
Xxxxxxxxx International (or, as applicable, any transferee Affiliate of
Xxxxxxxxx International to the extent permitted under the definition of
"International Intercompany Note") agree that any Indebtedness owed by the
Company and NBI to Xxxxxxxxx International (or such transferee) under or in
respect of the International Intercompany Note shall be expressly subordinated
in right of payment to the Notes.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (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), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by,
any other
13
Person and all other items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP.
"Issue Date" means the first date of issuance of Notes under
this Indenture.
"Issue Date Notes" means the $120,000,000 aggregate principal
amount of Notes originally issued on the Issue Date, and any replacement Notes,
Private Exchange Notes and Exchange Notes issued therefor in accordance with
this Indenture.
"Issue Date Registration Rights Agreement" means the
Registration Rights Agreement dated March 5, 2003 by and among the Company, the
Note Guarantors and Wachovia Securities, Inc., as initial purchaser.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Xxxx Xxxxx" means Xxxx Xxxxx of Crossharbour, PC(C), OC,
KCSG.
"Material Restricted Subsidiary" means each Restricted
Subsidiary of the Company which (i) for the most recent fiscal year of the
Company accounted for more than 5% of the Consolidated revenues of the Company
and its Restricted Subsidiaries or (ii) at the end of such fiscal year was the
owner (beneficial or otherwise) of more than 5% of the Consolidated Assets of
the Company and its Restricted Subsidiaries, all as shown on the Company's
Consolidated financial statements for such fiscal year.
"Maturity" when used with respect to any Note means the date
on which the principal of such Note becomes due and payable as therein provided
or as provided in this Indenture, whether at Stated Maturity, the Purchase Date
or the Redemption Date and whether by declaration of acceleration, Offer in
respect of Excess Proceeds, Change of Control, call for redemption or otherwise.
"NBI" means 504468 N.B. Inc., an indirect wholly owned
subsidiary of the Company organized under the laws of the Province of New
Brunswick.
"NBI Guarantee" means the guarantee by NBI of the Indenture
Obligations.
"Negative Net Cash Flow" means Net Cash Flow that is less than
zero.
"Net Cash Flow" means, for any period, Net Income plus,
without duplication, (i) the amount of all non-cash items reducing Net Income,
(ii) all amounts deducted in the calculation of Net Income on account of
depreciation and amortization, and (iii) all taxes provided for in the
calculation of Net Income, less, without duplication, (iv) any non-cash items
increasing Net Income, (v) all taxes paid in cash during such period, (vi) all
capital expenditures made in cash during such period, and (vii) all dividends
(excluding dividends on the Company's retractable common shares) made during
such period; all calculated in accordance with GAAP as of the last day of any
period. The Net Cash Flow of the Company will be calculated in U.S.
14
dollars; any monetary amount in a currency other than U.S. dollars will be
converted into U.S. dollars at the average exchange rate prevailing during the
relevant period.
"Net Cash Proceeds" means (a) with respect to any Asset Sale
by any Person, the proceeds thereof in the form of cash or Cash Equivalents
including payments of principal and interest in respect of deferred payment
obligations 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 (i) brokerage commissions and other reasonable fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire indebtedness where payment of such indebtedness is
secured by the assets or properties the subject of such Asset Sale, (iv) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale
and (v) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
and reflected in an Officers' Certificate delivered to the Trustee, and (b) with
respect to any issuance or sale of Capital Stock or options, warrants or rights
to purchase Capital Stock, or debt securities or Capital Stock that has been
converted into or exchanged for Capital Stock, as referred to in Section 10.09,
the proceeds of such issuance or sale in the form of Cash Equivalents, including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed of for, Cash Equivalents (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary), net of attorneys' fees, accountants' fees
and brokerage, consultation, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Dividend Amount" means the net cash dividend amount
received by the Company and NBI in the relevant fiscal year on the shares of
Class A Common Stock and Class B Common Stock held by them (including, without
limitation, any such shares pledged to the Collateral Agent as Pledged Share
Collateral), after deducting (i) any withholding taxes or income taxes paid or
payable in cash by the Company or NBI in respect of such dividends, and (ii) any
dividends received by the Company or NBI on such number of shares of Xxxxxxxxx
International held by the Company or NBI that corresponds to the number of
shares of Class A Common Stock into which the Series II Preferred Shares are
exchangeable.
"Net Income" of the Company means, for any period, the
unconsolidated net income (or loss (and treating a loss as a negative number))
of the Company for such period, adjusted by excluding, without duplication, to
the extent included in calculating such net income (or loss), (i) all
extraordinary gains and losses, (ii) the net income (or loss) of any Person
acquired during the specified period attributable to any period prior to the
date of such acquisition, (iii) any gain or loss realized upon the termination
of any employee pension benefit plan, (iv) aggregate gains and losses (less all
fees and expenses relating thereto) in respect of dispositions of assets other
than in the ordinary course of business (provided that any sale of
15
Capital Stock of Xxxxxxxxx International for cash would be considered a
disposition in the ordinary course of business), (v) any gain from the
collection of proceeds of life insurance policies and (vi) any gain or loss
arising from the acquisition of any securities of the Company, or the
extinguishment, under GAAP, of any Indebtedness of the Company. The Net Income
of the Company will be calculated in U.S. dollars; any monetary amount in a
currency other than U.S. dollars will be converted into U.S. dollars at the
average exchange rate prevailing during the relevant period.
"Note Custodian" means the custodian with respect to any
Global Note appointed by DTC, or any successor Person thereto, and shall
initially be the Trustee.
"Note Guarantors" means RMI and NBI and, if the context
requires, any Restricted Subsidiary guarantor of the Indenture Obligations.
"Notes" means any of the Company's 11.875% Senior Secured
Notes due 2011 issued and authenticated pursuant to this Indenture.
"Officer" when used with respect to the Company means the
Chairman of the Board, Vice Chairman, President or a Vice President (regardless
of Vice Presidential designation), Treasurer, Secretary or an Assistant
Secretary of the Company.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, President or a Vice President (regardless
of Vice Presidential designation), and by the Treasurer, Secretary or an
Assistant Secretary, of the Company, in form and substance reasonably
satisfactory to, and delivered to, the Trustee.
"Opinion of Counsel" means a written opinion of counsel, in
form and substance reasonably satisfactory to the Trustee, who may be counsel
for the Company or the Trustee, and who shall be reasonably acceptable to the
Trustee, including but not limited to an Opinion of Independent Counsel.
"Opinion of Independent Counsel" means a written opinion, in
form and substance reasonably satisfactory to the Trustee, by someone who is not
an employee or former employee of the Company and who shall be reasonably
acceptable to the Trustee.
"Outstanding" when used with respect to Notes means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
irrevocably 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; provided that, if the Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor reasonably satisfactory to the Trustee has been made;
16
(c) Notes, except to the extent provided in Sections 4.02
and 4.03, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article IV; and
(d) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture, other
than any such Notes in respect of which there shall have been presented
to the Trustee and the Company proof reasonably satisfactory to each of
them that such Notes are held by a bona fide purchaser in whose hands
the Notes are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes 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 relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the reasonable
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the
Company that is pari passu in right of payment with the Notes.
"Paying Agent" means any Person authorized by the Company to
pay the principal, premium, if any, or interest on any Notes on behalf of the
Company. The Company initially authorizes the Trustee to act as Paying Agent for
the Notes on its behalf. The Company may at any time and from time to time
authorize one or more Persons to act as Paying Agent in addition to or in place
of the Trustee with respect to any Notes issued under this Indenture.
"Permitted Distribution" means a distribution of an aggregate
of $44.1 million by the Company to RCL on or about the Issue Date, by way of
repayment of a loan of $32.6 million owed by the Company to RCL and a loan of
$11.5 million by the Company to RCL, which aggregate amount shall be promptly
applied by RCL to repay all outstanding amounts under the RCL Credit Agreement.
"Permitted Indebtedness" means the following:
(i) Indebtedness of the Company (including as guarantor
of NBI) or NBI under a Credit Facility to be established by the Company
in a maximum aggregate principal amount at any one time outstanding
(including any refinancings thereof) not to exceed Cdn. $15,000,000;
provided that, if any portion of the Credit Facility is comprised of
term loans (defined as loans with an amortizing schedule of principal
repayment), such maximum amount shall be reduced to the extent of any
permanent repayment of any Indebtedness under such term loans pursuant
to Section 10.13 of this Indenture;
17
(ii) Indebtedness of the Company pursuant to the Notes and
Indebtedness of any Restricted Subsidiary constituting a Guarantee of
the Notes;
(iii) Indebtedness of the Company or any Restricted
Subsidiary outstanding on the date hereof and listed on Schedule 1
hereto, provided that with respect to any Indebtedness of the Company
and NBI under or in respect of the International Intercompany Note,
none of such Indebtedness shall be deemed to be permitted hereunder
unless Xxxxxxxxx International, the Company and NBI shall have entered
into the International Subordination Agreement on or prior to the Issue
Date, provided further that in the event Xxxxxxxxx International
assigns the International Intercompany Note to an Affiliate, such
Affiliate agrees in writing to be bound by the terms of the
International Subordination Agreement as if it had originally been a
party thereto;
(iv) Indebtedness (a) of the Company owing to a Restricted
Subsidiary, or (b) of a Restricted Subsidiary owing to another
Restricted Subsidiary or the Company; provided that any such
Indebtedness is made pursuant to an intercompany note setting forth the
principal amount, interest rate and payment dates, the maturity or
similar terms and, in the case of Indebtedness of the Company owing to
a Restricted Subsidiary, is subordinated in right of payment from and
after such time as the Notes shall become due and payable (whether at
Stated Maturity, acceleration or otherwise) to the payment and
performance of the Company's obligations under the Notes; provided
further that (x) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than (A) to the Company or a Restricted
Subsidiary or (B) a pledge of such Indebtedness to secure Indebtedness
existing at such time under, and pursuant to the terms of, the Credit
Facility) will be deemed to be an Incurrence of such Indebtedness by
the obligor not permitted by this clause (iv) and (y) any transaction
pursuant to which any Restricted Subsidiary that has Indebtedness owing
to the Company or any other Restricted Subsidiary ceases to be a
Restricted Subsidiary will be deemed to be the Incurrence of
Indebtedness by the Company or such other Restricted Subsidiary that is
not permitted by this clause (iv);
(v) obligations of the Company or any Restricted
Subsidiary pursuant to Interest Rate Agreements or Currency Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates or currency exchange rates in respect of
Indebtedness of the Company or any of its Restricted Subsidiaries, the
notional amount of which (in the case of Interest Rate Agreements) and
the notional or exchange amount of which (in the case of Currency
Agreements) do not exceed the aggregate principal amount of such
Indebtedness;
(vi) guarantees by Restricted Subsidiaries of Indebtedness
of the Company otherwise permitted to be Incurred under the definition
of "Permitted Indebtedness" and in accordance with the provisions of
Section 10.12 of this Indenture;
(vii) Redeemable Capital Stock or Preferred Stock issued by
the Company from time to time to finance retractions or redemptions of
(a) its outstanding Retractable Common Shares and Series II Preferred
Shares (other than any such shares held by Affiliates of the Company)
and (b) any Series III Preferred Shares not retracted or
18
redeemed with proceeds of Subordinated Indebtedness incurred as
permitted under clause (ix) below;
(viii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness Incurred as described in paragraphs (ii), (iii), (vi),
(ix) and (x) of this definition of "Permitted Indebtedness," by the
Company or by the obligor of such Permitted Indebtedness, including any
successive refinancings, so long as (a) such refinancing does not
increase the aggregate principal amount of Indebtedness represented
thereby and, in the case of Pari Passu Indebtedness or Subordinated
Indebtedness, such refinancing does not reduce the Average Life to
Stated Maturity or the Stated Maturity of such Indebtedness and (b) any
such refinancing Indebtedness shall not be senior in right of payment
to the Indebtedness so refinanced;
(ix) Subordinated Indebtedness of the Company incurred to
finance the redemption price at maturity of the Series III Preferred
Shares, so long as (a) such Indebtedness is not in an aggregate
principal amount greater than the aggregate redemption price of such
Series III Preferred Shares and (b) not more than 50% in principal
amount of such Indebtedness has a Stated Maturity occurring earlier
than that of the Notes;
(x) Indebtedness of the Company or any Restricted
Subsidiary in an aggregate amount at any time outstanding not to exceed
$1,000,000 in respect of purchase money obligations, provided (a) such
Indebtedness is Incurred within 180 days of the purchase of the
relevant assets, (b) such Indebtedness does not exceed the actual
purchase price of such assets and (c) any related Liens do not extend
to any assets other than those being purchased;
(xi) Subordinated Indebtedness of the Company owing to
RMI, where the loans representing such Subordinated Indebtedness have
been made by RMI to the Company pursuant to the terms of, and RMI's
obligations under, the Support Agreement, provided that such
Indebtedness has a Stated Maturity occurring after the Maturity of the
Notes and such Indebtedness is expressly subordinated in right of
payment to the Notes in accordance with the RMI Subordination
Agreement;
(xii) Subordinated Intercompany Loans of the Company owed
to RCL or RMI, representing amounts received by the Company from RCL or
RMI, respectively, through voluntary cash contributions by RCL or RMI
to the Company after the Issue Date; and
(xiii) Additional Notes of up to $30,000,000 principal
amount in one or more issuances such that, when all such issuances are
aggregated with the Notes originally issued on the date of this
Indenture (the "Original Notes"), the maximum aggregate principal
amount of Notes would not exceed $150,000,000, provided that: (a) the
Coverage Ratio must be greater than or equal to 150% on the date of
such issuance (before taking into account any Additional Notes to be
issued), (b) the Coverage Ratio must be greater than or equal to 125%
pro forma for such Additional Notes issuance, (c) the aggregate Current
Market Price of the Pledged Share Collateral on the date of such
issuance (before taking into account any Additional Notes to be issued)
is at least 200%
19
of the principal amount of Notes outstanding prior to such issuance
(excluding any Cash Collateralized Notes), (d) the Company deposits an
amount of additional Class A Common Stock and/or Class B Common Stock
of Xxxxxxxxx International with the Collateral Agent such that the
Current Market Price of the additional common stock is at least 200% of
the principal amount of the Additional Notes to be issued, (e) the
Additional Notes are issued at an issue price to investors of not less
than 99.377%, (f) the Floor Amount pursuant to the Support Agreement is
increased proportionately by multiplying the reference to $14,000,000
in the definition of "Floor Amount" by a fraction the numerator of
which is the aggregate principal amount of Notes outstanding after such
issuance and the denominator of which is the aggregate principal amount
of Original Notes, (g) the Company and RMI enter into a supplemental
Support Agreement, or amend the Support Agreement with the Trustee and
Collateral Agent in order to effect such increase, (h) the Company
delivers an Opinion of Independent Counsel to the Trustee as to the
validity and enforceability of such supplement or amendment to the
Support Agreement, and (i) the Company delivers an Officers'
Certificate attaching the express written consent of Xxxxxxxxx
International to the subordination of the International Intercompany
Note to any such Additional Notes to the same extent as the Notes
issued on the Issue Date.
For purposes of determining compliance with any U.S. dollar denominated
restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is
denominated in a different currency, the amount of such Indebtedness will be the
Dollar Equivalent determined on the date of the Incurrence of such Indebtedness;
provided, however, that, if any such Indebtedness denominated in a different
currency is subject to a Currency Agreement with respect to U.S. dollars
covering all principal, premium, if any, and interest payable on such
Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be
as provided in such Currency Agreement. The principal amount of any refinancing
Indebtedness Incurred in the same currency as the Indebtedness being refinanced
will be the Dollar Equivalent of the Indebtedness refinanced, except to the
extent that (i) such Dollar Equivalent was determined based on a Currency
Agreement, in which case the refinancing Indebtedness will be determined in
accordance with the preceding sentence, and (ii) the principal amount of the
refinancing Indebtedness exceeds the principal amount of the Indebtedness being
refinanced, in which case the Dollar Equivalent of such excess will be
determined on the date such refinancing Indebtedness is Incurred.
"Permitted Investment" means any of the following:
(i) Investments in any Restricted Subsidiary or the
Company or Investments in a Person if as a result of such Investment
(A) such Person becomes a Restricted Subsidiary or (B) such Person is
merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the
Company or any Restricted Subsidiary;
(ii) Investments in the Notes;
(iii) Indebtedness owing to a Restricted Subsidiary or the
Company as described under clause (iv) of the definition of "Permitted
Indebtedness";
20
(iv) Temporary Cash Investments;
(v) Investments acquired by the Company or any Subsidiary
in connection with an Asset Sale permitted under Section 10.13 to the
extent such Investments are non-cash consideration as permitted under
such covenant;
(vi) Investments in existence on the date of this
Indenture; and
(vii) in addition to the Investments described in clauses
(i) through (vi) of this definition of "Permitted Investment,"
Investments in any Unrestricted Subsidiary or in any joint venture or
other entity in an amount not to exceed $500,000 in the aggregate since
the date of this Indenture.
"Permitted Liens" means:
(i) Liens for taxes, assessments, governmental charges or
claims that are not yet delinquent or are being contested in good faith
by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made;
(ii) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or
other similar Liens (including maritime Liens) arising in the ordinary
course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security;
(iv) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations
of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(v) easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or other
irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted
Subsidiaries;
(vi) Liens (including extensions, renewals and
replacements thereof) upon real or personal property, including Capital
Stock, acquired after the Issue Date; provided, that (a) such Lien is
created solely for the purpose of securing Indebtedness Incurred in
accordance with clause (x) of the definition of "Permitted
Indebtedness";
(vii) Liens on property of, or on shares of Capital Stock
or Indebtedness of, any Person existing at the time such Person
becomes, or becomes a part of, any Restricted
21
Subsidiary; provided that such Liens do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other
than the property or assets acquired;
(viii) Liens in favor of the Company or any Restricted
Subsidiary;
(ix) Liens securing reimbursement obligations with respect
to letters of credit that encumber documents and other property
relating to such letters of credit and the products and proceeds
thereof;
(x) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(xi) Liens encumbering customary initial deposits and
margin deposits, and other Liens that are within the general parameters
customary in the industry and incurred in the ordinary course of
business, in each case, securing Indebtedness under Interest Rate
Agreements and Currency Agreements;
(xii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business; and
(xiii) Liens granted by the Company on or after the date of
this Indenture in favor of Xxxxxxxxx International in and to the
Company's rights under the guarantee by RCL of RMI's obligations to the
Company under the Contribution Agreement and the Support Agreement.
"Permitted Transfer" means an assignment (duly consented to by
the Note Guarantors) to (a) the Company or (b) any other existing or new direct
or indirect Subsidiary of RCL provided that such entity is (i) formed under the
laws of Canada or any province thereof or the United States of America or any
state thereof, (ii) has a Consolidated Net Worth at least equal to that of RMI
and (iii) has no greater Indebtedness or other liabilities required to be
recorded on its balance sheet (as reflected on the most recently available
financial statements of such entity) by GAAP or United States Generally Accepted
Accounting Principles, as applicable, or contingent obligations than those
reflected on RMI's most recent balance sheet.
"Person" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivisions thereof.
"Pledged Agreements" means (i) the fee and other contract
rights under the Services Agreements pledged as security for the obligations of
RMI under its Guarantee pursuant to the Security Agreement and (ii) the support
payment and other contract rights under the Support Agreement pledged as
security for the Company's obligations under the Notes pursuant to the Security
Agreement.
"Pledged Share Collateral" means the Designated Class A Shares
and the Class B Shares.
22
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.07 in exchange for a mutilated Note
or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"Private Exchange Notes" shall have the meaning assigned to
such term in the Issue Date Registration Rights Agreement and any other
Registration Rights Agreement.
"Public Equity Offering" means a public offering of Qualified
Capital Stock of the Company.
"QIB" means any "qualified institutional buyer" (as defined in
Rule 144A).
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Rating Agency" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. and its successors ("S&P") and
Xxxxx'x Investors Service, Inc. and its successors ("Moody's") or, if S&P and
Xxxxx'x or both shall not make a rating of the Notes publicly available, a
nationally recognized United States statistical rating agency or agencies
substituted for S&P or Moody's or both, as the case may be.
"Rating Category" means each major rating category symbolized
by (a) in the case of S&P, AAA, AA, A, BBB, BB, B, CCC, CC and C and each such
Rating Category shall include pluses or minuses ("gradations") modifying such
capital letters; and (b) in the case of Moody's, Aaa, Aa, A, Baa, Ba, B, Caa, Ca
and C and each such Rating Category shall include added numerals such as 1, 2 or
3 ("gradations") modifying such letters.
"RCL" means The Ravelston Corporation Limited, a corporation
incorporated under the laws of the Province of Ontario, and any successor
Person.
"RCL Credit Agreement" means the credit agreement dated as of
July 6, 1999 among RCL, each financial institution from time to time signatory
therein, and the lead arranger and administrative agent, syndication agent and
documentation agent named xxxxxxx, as amended through February 24, 2003.
"RCL Repayment Amount" means, for any period, any permanent
repayment of the principal amount of Indebtedness owing by RCL to the Company
that is received by the Company during such period.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms or by the terms of any security into which it is convertible
or otherwise exchangeable, would, upon
23
the happening of an event or passage of time, be required to be redeemed in cash
prior to any Stated Maturity of the principal of the Notes. For the avoidance of
doubt, "Redeemable Capital Stock" shall not be deemed to include any Capital
Stock of the Company that is retractable or redeemable at the option of the
holder thereof for cash or Class A Common Stock at any time prior to any such
Stated Maturity, or is convertible into or exchangeable for debt securities at
any time prior to any such Stated Maturity at the option of the holder thereof,
solely for so long as the Company continues to qualify as a "mutual fund
corporation" under the Income Tax Act (Canada).
"Redemption Date" when used with respect to any Note to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed pursuant to any provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture.
"Registered Exchange Offer" means an exchange offer by the
Company registered under the Securities Act pursuant to which Notes originally
issued pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
"Registration Rights Agreement" means any registration rights
agreement between the Company, the Note Guarantors and one or more investment
banks acting as initial purchasers in connection with any issuance of Notes
under this Indenture, including the Issue Date Registration Rights Agreement.
"Registration Statement" means an effective Exchange Offer
Registration Statement or Shelf Registration Statement.
"Regular Record Date" for the interest payable on any Interest
Payment Date relating to a particular Note means the date specified in the Board
Resolution or supplemental indenture relating to such Note.
"Resale Restriction Termination Date" means, for any
Restricted Note that is an Issue Date Note (or beneficial interest therein), two
years (or such other period specified in Rule 144(k) under the Securities Act)
from the Issue Date or, for any Additional Notes (or beneficial interests
therein) that are Restricted Notes, two years (or such other period specified in
Rule 144(k)) from the latest such original issue date of such Additional Notes.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Division of the Trustee or any
agent of the Trustee appointed xxxxxxxxx, including the president, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers or any other
officer appointed hereunder to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
24
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Note" means any Issue Date Note (or beneficial
interest therein) or any Additional Note (or beneficial interest therein) not
originally issued and sold pursuant to an effective registration statement under
the Securities Act until such time as:
(i) such Issue Date Note (or beneficial interest therein)
or Additional Note (or beneficial interest therein) has been exchanged
for a corresponding Exchange Note pursuant to an Exchange Offer
Registration Statement or has been transferred pursuant to a Shelf
Registration Statement;
(ii) the Resale Restriction Termination Date therefor has
passed;
(iii) such Note is a Regulation S Global Note and the
Distribution Compliance Period therefor has terminated; or
(iv) the Private Placement Legend therefor has otherwise
been removed pursuant to Section 3.06(d), in the case of a beneficial
interest in a Global Note, or such beneficial interest has been
exchanged for an interest in a Global Note not bearing a Private
Placement Legend.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"RMI" means Ravelston Management Inc., a corporation
incorporated under the laws of the Province of Ontario, and any successor
Person.
"RMI Guarantee" means the guarantee by RMI of the Indenture
Obligations.
"RMI Subordination Agreement" means the subordination
agreement attached as Exhibit G to this Indenture whereby the Company and RMI
agree that any Indebtedness owed by the Company to RMI under the Support
Agreement shall be expressly subordinated in right of payment to the Notes.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule).
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement dated the
date hereof (attached as Exhibit G to this Indenture) between the Company, RMI,
NBI and the Trustee and the Collateral Agent governing (i) the first priority
security interest granted by RMI over the Services Agreements in favor of the
Collateral Agent, (ii) the first priority pledge granted by the Company and NBI
over the Pledged Share Collateral in favor of the Collateral Agent and (iii) the
first priority security interest granted by the Company in the Support Agreement
in favor of the Collateral Agent.
"Security Documents" means the Security Agreement and all
other agreements, instruments and documents entered into by the Company and the
Note Guarantors from time to
25
time for the purpose of creating and perfecting the security interests in favor
of the Collateral Agent in the Senior Notes Collateral.
"Senior Notes Collateral" means the Pledged Share Collateral,
the Pledged Agreements, any amounts on deposit in the Collateral Account and all
other collateral securing the Notes and the Guarantees from time to time as
described in the Security Agreement.
"Series II Preferred Shares" means the series of preference
shares of the Company designated as Exchangeable Non-Voting Preference Shares
Series II.
"Series III Preferred Shares" means the series of preference
shares of the Company designated as Retractable Non-Voting Preference Shares
Series III.
"Services Agreements" means (1) the Services Agreement dated
as of January 1, 1998 between Xxxxxxxxx International and RCL, as assigned by
RCL to RMI pursuant to the Transfer and Consent Agreement dated July 5, 2002,
and (2) the Amended and Restated Services Agreement dated as of December 1, 1999
between HCPH (successor in interest to Southam Inc.) and RCL, as assigned by RCL
to RMI pursuant to the Transfer and Consent Agreement dated July 5, 2002, and,
in each case, as the same may be amended in accordance with the terms of the
Security Agreement.
"Share Cancellation Transaction" means the cancellation of
2,000,000 shares of Class A Common Stock by way of the repurchase of such shares
by Xxxxxxxxx International from the Company, NBI and/or their nominees and the
redemption of 93,206 shares of Xxxxxxxxx International's Series E preferred
stock by NBI.
"Shelf Registration Statement" shall have the meaning assigned
to such term in the Issue Date Registration Rights Agreement and any other
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon, means the dates specified in such
Indebtedness as the fixed dates on which the principal of such Indebtedness or
such installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means (i) in the case of any
Person other than the Company, Indebtedness of such Person that is expressly
subordinate in right of payment to any other Indebtedness of such Person
pursuant to a written agreement, and (ii) in the case of the Company,
Indebtedness of the Company that is expressly subordinate in right of payment to
the Notes.
"Subordinated Intercompany Loans" means Subordinated
Indebtedness of the Company that, in accordance with its terms, is not required
to be repaid (including, without limitation, with respect to any principal,
premium, redemption amount or interest), and may not be declared due and payable
by the lender, at any time prior to the Stated Maturity of the Notes, such that
no cash payment is required to be made by the Company in respect of such
26
Indebtedness (including, without limitation, in respect of interest) for so long
as any Notes are outstanding.
"Subsidiary" means any Person a majority of the equity
ownership of the Voting Stock of which is at the time owned, directly or
indirectly, by the Company or by one or more Subsidiaries, or by the Company and
one or more other Subsidiaries.
"Sugra" means Sugra Limited, a wholly owned subsidiary of the
Company organized under the laws of the Province of Ontario.
"Support Agreement" means the support agreement between RMI
and the Company to be dated the Issue Date, as amended or supplemented from time
to time in accordance with this Indenture.
"Temporary Cash Investments" means (i) any evidence of
Indebtedness, maturing not more than one year after the date of acquisition,
issued by the United States of America, or an instrumentality or agency thereof,
and guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not more
than one year after the date of acquisition, issued by, or time deposit of, the
Trustee or a commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500,000,000, whose debt has a rating, at the time as of which
any investment therein is made, of "P-1" (or higher) according to Xxxxx'x or
"A-1" (or higher) according to S&P, (iii) commercial paper, maturing not more
than one year after the date of acquisition, issued by a corporation (other than
an Affiliate or Restricted Subsidiary of the Company) organized and existing
under the laws of the United States of America with a rating, at the time as of
which any investment therein is made, of "P-1" (or higher) according to Moody's
or "A-1" (or higher) according to S&P, and (iv) any money market deposit
accounts issued or offered by the Trustee or a domestic commercial bank having
capital and surplus in excess of $500,000,000.
"Trading Day" means, with respect to a security, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which securities
are not generally traded on the exchange or market on which such security is
traded.
"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.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Unrestricted Subsidiary" means (a) as of the date of this
Indenture, Xxxxxxxxx International and its Subsidiaries and Domgroup Ltd.
(excluding NBI, Sugra and 00 Xxxxxxx Xxxxxx Inc.) and (b) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary after the
date of this Indenture pursuant to a Board Resolution in accordance with Section
10.20 of this Indenture; provided, however, that a Person may not be designated
as an Unrestricted Subsidiary unless (i) the creditors of such Person have no
direct or indirect recourse (including, but not limited to, recourse with
respect to the payment of principal or interest on Indebtedness of such
Subsidiary) to the Company or a Restricted Subsidiary and (ii) a default by
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such Person on any of its Indebtedness will not result in, or permit any holder
of Indebtedness of the Company or a Restricted Subsidiary to declare, a default
on such Indebtedness of the Company or a Restricted Subsidiary or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity. Any
subsidiary of an Unrestricted Subsidiary shall be an Unrestricted Subsidiary for
purposes of this Indenture (other than, in the case of Domgroup Ltd., NBI, Sugra
and 00 Xxxxxxx Xxxxxx Inc.).
"Voting Stock" means stock of the class or classes 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 a corporation (irrespective of whether or not at the time stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all the outstanding Capital Stock (other than directors' qualifying
shares) of which is owned by the Company or another Wholly Owned Restricted
Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -----------
"Act" 1.05
"Additional Amounts" 10.21(b)
"Agent Members" 3.04
"Authorized Agent" 1.17
"Allocated Proceeds" 10.13
"Cash Collateralized Note Amount" 14.04
"Cash Collateralized Notes" 14.04
"Change of Control Offer" 10.14
"Change of Control Purchase Date" 10.14
"Change of Control Purchase Notice" 10.14
"Change of Control Purchase Price" 10.14
"covenant defeasance" 4.03
"Defaulted Interest" 3.08
"defeasance" 4.02
"Defeasance Redemption Date" 4.04
"Defeased Notes" 4.01
"Deficiency" 10.13
"Event of Default" 5.01
"Excess Proceeds" 10.13
"Excluded Holder" 10.21(b)
"Excluded Taxes" 10.21(b)
"Issuance Proceeds" 10.13(f)
"Judgment Currency" 1.18
"Non-U.S. Person" 3.06
"Note Amount" 10.13
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"Note Register" 3.03
"Note Registrar" 3.03
"Offer" 10.13
"Offered Price" 10.13
"Pari Passu Debt Amount" 10.13
"Pari Passu Offer" 10.13
"Permitted Payment" 10.09
"Private Placement Legend" 3.05
"Purchase Date" 10.13
"rate of exchange" 1.18
"refinancing" 10.09
"Regulation S Global Note 2.01(e)
"Relevant Taxing Jurisdiction" 10.21(a)
"Required Filing Dates" 10.17
"Restricted Payments" 10.09
"RP Available Amount" 10.09
"Rule 144A Global Note" 2.01(d)
"Senior Representative" 12.03
"Special Payment Date" 3.08
"Surviving Entity" 8.01
"Taxes" 10.21(a)
"U.S. Government Obligations" 4.04
SECTION 1.03. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate to the effect 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 to the effect 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 any certificates and/or opinions 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 of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement to the effect that each individual or
firm signing such certificate or opinion has read and understands 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 to the effect that, in the opinion of
each such individual or such firm, he has made such examination or
investigation as is necessary to enable him or
29
them 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 or such firm, such condition or covenant has been
complied with.
SECTION 1.04. 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 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 upon which his certificate or opinion is based are
erroneous. Any certificate or opinion of such an Officer or 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 with respect to
such factual matters and which contains a statement to the effect that the
information with respect to such factual matters is in the possession of the
Company, unless such Officer or counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
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 1.05. 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 of any Notes may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent 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. 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 and the Company, if made in the manner provided in this Section.
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(b) The ownership of Notes shall be proved by the Note
Register.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holder of any Note shall bind every
future Holder of the same Note or the Holder of every Note issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
(d) 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 of affidavit shall also constitute
sufficient proof of his 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 which the Trustee deems sufficient.
SECTION 1.06. Notices, etc., to Trustee and the Company. 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 or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed, in writing, by first-class mail postage prepaid (return receipt
requested) or delivered in person or by recognized overnight courier to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Division, or at any other address furnished in writing prior
thereto to the Holders and the Company by the Trustee; or
(b) the Company, RMI or NBI shall be sufficient for every
purpose (except as provided in Section 5.01(c)) hereunder if in writing
and mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to the Company, addressed to it at: 00 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, Attn: Chief Financial Officer, or at
any other address previously furnished in writing to the Trustee by the
Company, as the case may be.
SECTION 1.07. Notice to Holders; Waiver. Where this Indenture
or the Notes provide for notice to Holders of any event, 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 such Holder's address as it appears in the Note 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 when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture or the Notes provide 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
31
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 regular mail service
or by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be reasonably satisfactory to the Trustee or the Company,
as applicable, shall be deemed to be a sufficient giving of such notice.
SECTION 1.08. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with any provision of the Trust
Indenture Act or another provision which is required or deemed to be included in
this Indenture by any of the provisions of the Trust Indenture Act, the
provision or requirement of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, such provision of the Trust
Indenture Act shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 1.09. 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.
SECTION 1.10. Successors and Assigns. All covenants and
agreements in this Indenture by the Company or any Note Guarantor shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person (other than the
parties hereto and their successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.13. GOVERNING LAW. THIS INDENTURE, THE NOTES AND THE
GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF).
SECTION 1.14. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of interest or principal or premium, if any, 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 or Redemption Date, or
at Maturity or the Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
32
SECTION 1.15. Schedules and Exhibits. All schedules and
exhibits attached hereto are by this reference made a part hereof with the same
effect as if herein set forth in full.
SECTION 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 1.17. Jurisdiction and Service of Process. Any legal
action or proceeding with respect to this Indenture or the Notes may be brought
in the courts of the State of New York or the federal courts of the United
States located in The City of New York, and each of the Company and the Note
Guarantors consents to the jurisdiction of such courts. Each of the Company and
the Note Guarantors irrevocably waives any objection, including any objection to
the laying of venue or based on forum non conveniens, which it may have to the
bringing of any action or proceeding in such jurisdiction with respect to this
Indenture, the Notes, the Security Agreement or any other document related
thereto. Notwithstanding the foregoing, (1) the Trustee and/or the Collateral
Agent shall have the right to bring any action or proceeding against the
Company, the Note Guarantors and their property in the courts of any other
jurisdiction the Trustee and/or the Collateral Agent deem necessary or
appropriate in order to enforce the obligations of the Company and the Note
Guarantors or to realize upon the Senior Notes Collateral or other security for
those obligations and (2) each of the Company and the Note Guarantors
acknowledges that any appeals from the courts described in the preceding
sentence may have to be heard by a court located outside those jurisdictions.
Each party agrees that any service of process or other legal
summons in connection with any proceeding may be served on it by mailing a copy
thereof by registered mail, or a form of mail substantially equivalent thereto,
postage prepaid, addressed to the served party at its address as provided for in
Section 1.06 hereof. Nothing in this Section shall affect the right of the
parties to serve process in any other manner permitted by law. Each of the
Company and the Note Guarantors has appointed Xxxx Xxxxx at Xxxxxxxxx
International Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 as its
authorized agent in New York City (the "Authorized Agent," which term, as used
herein, includes any successor in such capacity) upon whom process may be served
in any such action, suit or proceeding arising out of or relating to this
Agreement or any of the transactions contemplated hereby which may be instituted
in any federal or state court in the State of New York by the Trustee or by any
person who controls the Trustee.
To the extent allowed by any applicable requirement of law,
each of the Company and the Note Guarantors waives personal service of any and
all process upon it and consents that all such service of process may be made by
registered mail (return receipt requested) directed to such party at its address
set forth in this Indenture and service so made shall be deemed to be completed
five days after the same shall have been so posted in the United States (or
Canada, as applicable), postage prepaid. Nothing contained in this Section 1.17
shall affect the right of the Trustee and/or the Collateral Agent to serve legal
process by any other manner permitted by law.
SECTION 1.18. Judgment Currency. If for the purpose of
obtaining judgment in any court or for the purpose of determining, pursuant to
the obligations of the Company or any Note Guarantor, the amounts owing
hereunder, it is necessary to convert an amount due
33
hereunder in U.S. dollars into a currency other than U.S. dollars (the "Judgment
Currency"), the rate of exchange applied shall be that at which, in accordance
with normal banking procedures, the Trustee or Collateral Agent could purchase,
in the New York foreign exchange market, U.S. dollars with the Judgment Currency
on the date that is two Business Days preceding that on which judgment is given
or any other payment is due hereunder. Each of the Company and the Note
Guarantors agrees that its respective obligation in respect of any U.S. dollars
due from it to the Holders hereunder shall, notwithstanding any judgment or
payment in the Judgment Currency, be discharged only to the extent that, on the
Business Day following the date the Trustee or Collateral Agent receives payment
of any sum so adjudged or owing to be due hereunder in the Judgment Currency,
the Trustee or Collateral Agent may, in accordance with normal banking
procedures, purchase, in the New York foreign exchange market U.S. dollars with
the amount of the Judgment Currency so paid; and if the amount of U.S. dollars
so purchased, or which could have been so purchased, is less than the amount
originally due in U.S. dollars, each of the Company and the Note Guarantors
agrees as a separate obligation and notwithstanding any such payment or judgment
to indemnify the Trustee or Collateral Agent against such loss. The term "rate
of exchange" in this Section 1.18 means the spot rate at which the Trustee or
Collateral Agent, in accordance with normal banking practices is able on the
relevant date to purchase U.S. dollars with the Judgment Currency and includes
any premium and costs of exchange payable in connection with such purchase.
No provision of this Indenture, individually or collectively,
shall have the effect of requiring the Company to pay interest (as such term is
defined in section 347 of the Criminal Code of Canada) at a rate in excess of
60% per annum, taking into account all other amounts which must be taken into
account for the purpose thereof and, to such extent, the Company's obligation to
pay interest hereunder shall be so limited.
ARTICLE II
Form of Note
SECTION 2.01. Form Generally. (a) The Notes will be issued in
registered form without coupons, and in denominations of $1,000 and any integral
multiple thereof.
(b) The terms and provisions of the Notes, the form of
which is in Exhibit A hereto, shall constitute, and are hereby expressly made, a
part of this Indenture, and, to the extent applicable, the Company, the Note
Guarantors and the Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound thereby. Except as
otherwise expressly permitted in this Indenture, all Notes shall be identical in
all respects. Notwithstanding any differences among them, all Notes issued under
this Indenture shall vote and consent together on all matters as one class.
(c) The Notes may have notations, legends or endorsements
as specified in Section 3.05 or as otherwise required by law, stock exchange
rule or DTC rule or usage. The Company and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. Each Note shall be
dated the date of its authentication.
34
(d) Notes originally offered and sold to QIBs in reliance
on Rule 144A will be issued in the form of one or more permanent Global Notes
(each, a "Rule 144A Global Note").
(e) Notes originally offered and sold outside the United
States of America will be issued in the form of one or more permanent Global
Notes (each, a "Regulation S Global Note").
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be included on the form of the
face of the Notes substantially in the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned
Indenture.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By _____________________________
Authorized Signatory
SECTION 2.03. Form of Guarantees. (a) The form of Guarantee of
RMI shall be set forth on the Notes substantially as follows:
GUARANTEE OF RAVELSTON MANAGEMENT INC.
For value received, RAVELSTON MANAGEMENT INC., a corporation
incorporated under the laws of the Province of Ontario, hereby absolutely,
unconditionally and irrevocably guarantees to the Holder of this Note and the
Trustee, as if Ravelston Management Inc. were the principal debtor, the punctual
payment, on demand, of principal of, premium, if any, and interest on this Note
in the amounts and at the time when due and interest on the overdue principal
and interest, if any, of this Note, if lawful, and the payment or performance of
all other obligations of the Company under this Indenture or the Notes, to the
Holder of this Note and the Trustee, all in accordance with and subject to the
terms and limitations of this Note and Article Thirteen of this Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note.
RAVELSTON MANAGEMENT INC.
Attest: _________________________ By _____________________________
Authorized Signatory
(b) The form of Guarantee of NBI shall be set forth on
the Notes substantially as follows:
35
GUARANTEE OF 504468 N.B. INC.
For value received, 504468 N.B. INC., a company organized
under the laws of the Province of New Brunswick, hereby absolutely,
unconditionally and irrevocably guarantees to the Holder of this Note and the
Trustee, as if 504468 N.B. Inc. were the principal debtor, the punctual payment,
on demand, of principal of, premium, if any, and interest on this Note in the
amounts and at the time when due and interest on the overdue principal and
interest, if any, of this Note, if lawful, and the payment or performance of all
other obligations of the Company under this Indenture or the Notes, to the
Holder of this Note and the Trustee, all in accordance with and subject to the
terms and limitations of this Note and Article Thirteen of this Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note.
504468 N.B. INC.
Attest: _________________________ By _____________________________
Authorized Signatory
ARTICLE III
The Notes
SECTION 3.01. Execution, Authentication, Delivery and Dating.
(a) The Notes shall be executed on behalf of the Company by one of its Chairman
of the Board, Vice-Chairman, President or one of its Vice Presidents under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Notes may
be manual or facsimile.
(b) Notes 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 Notes or did
not hold such offices on the date of such Notes.
(c) At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes as provided in this
Indenture and not otherwise. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is limited to $150,000,000.
(d) Each Note shall be dated the date of its
authentication.
(e) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and
the
36
only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
(f) In case the Company, pursuant to Article VIII, shall
be consolidated or merged with or into any other Person or shall sell, convey,
assign, transfer, lease or otherwise dispose of substantially all of its
properties and assets 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 consolidated, or the successor 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 Notes 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 Notes 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 Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon a Company Request of the successor Person, shall
authenticate and deliver Notes as specified in such order for the purpose of
such exchange. If Notes 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 Notes, such successor
Person, at the option of a Holder but without expense to such Holder, shall
provide for the exchange of all Notes at the time Outstanding held by such
Holder for Notes authenticated and delivered in such new name.
(g) The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate Notes on behalf of the
Trustee. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Note Registrar or
Paying Agent to deal with the Company and its Affiliates.
SECTION 3.02. Temporary Notes. Pending the preparation of
definitive Notes, the Company may execute, and upon a Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Notes in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Notes may determine, as conclusively evidenced by
their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 10.02 (or in
accordance with Section 3.01, in the case of the initial Notes), without charge
to the Holders thereof. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and upon a Company Order the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
37
SECTION 3.03. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee, or such other office as the Trustee may designate, a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 10.02 being herein sometimes referred to as the "Note
Register") in which, subject to such reasonable regulations as the Note
Registrar may prescribe, the Company shall provide for the registration of Notes
and of transfers of Notes. The Trustee or an agent thereof or of the Company
shall initially be the "Note Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. The Company may appoint one or more
co-registrars, but there shall be only one Note Register.
Upon surrender for registration of transfer of any Note at the
office or agency of the Company designated pursuant to Section 10.02, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer, or for exchange or redemption, shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee and the Note
Registrar, duly executed by the Holder thereof or such Xxxxxx's attorney duly
authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer, exchange or redemption of Notes, but the Company may
require payment of a sum sufficient to pay any tax or other governmental charges
that may be imposed in connection with any registration of transfer, exchange or
redemption of Notes (other than any such governmental charges payable upon
exchange or transfer pursuant to a Registered Exchange Offer or pursuant to
Section 3.01, 3.02, 3.07, 9.06, 10.14, 10.15 or 11.08 not involving any
transfer).
The Company shall not be required (a) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of the Notes
selected for redemption under Section 11.04 and ending at the close of business
on the day of such mailing, or (b) to register the transfer of or exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of Notes being redeemed in part.
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None of the Company, the Trustee, any agent of the Trustee,
any Paying Agent or the Note Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Note or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
SECTION 3.04. Global Note Provisions (a) Each Global Note
initially shall: (i) be registered in the name of DTC or the nominee of DTC,
(ii) be delivered to the Note Custodian, and (iii) bear the appropriate legend,
as set forth in Section 3.05 and Exhibit A. Any Global Note may be represented
by more than one certificate. The aggregate principal amount of each Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Note Custodian, as provided in this Indenture.
(b) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by DTC or by the Note Custodian under such Global Note, and DTC
may be treated by the Company, the Trustee, the Paying Agent and the Note
Registrar and any of their agents as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, the Paying Agent or the Note Registrar or any
of their agents from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices of DTC governing the exercise of the rights
of an owner of a beneficial interest in any Global Note. The registered Holder
of a Global Note may grant proxies and otherwise authorize any person, including
Agent Members and persons that may hold interests through Agent Members, to take
any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Except as provided below, owners of beneficial
interests in Global Notes will not be entitled to receive Certificated Notes.
Certificated Notes shall be issued to all owners of beneficial interests in a
Global Note in exchange for such interests if:
(i) DTC notifies the Company that it is unwilling or
unable to continue as depositary for such Global Note or DTC ceases to
be a clearing agency registered under the Exchange Act, at a time when
DTC is required to be so registered in order to act as depositary, and
in each case a successor depositary is not appointed by the Company
within 90 days of such notice,
(ii) the Company executes and delivers to the Trustee and
Note Registrar an Officers' Certificate stating that such Global Note
shall be so exchangeable, or
(iii) an Event of Default has occurred and is continuing
and the Note Registrar has received a request from DTC.
In connection with the exchange of an entire Global Note for Certificated Notes
pursuant to this paragraph (c), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver, to each
beneficial owner identified by DTC in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
39
(d) In connection with the exchange of a portion of a
Certificated Note for a beneficial interest in a Global Note, the Trustee shall
cancel such Certificated Note, and the Company shall execute, and the Trustee
shall authenticate and deliver to the exchanging Holder, a new Certificated Note
representing the principal amount not so exchanged unless such principal amount
is to be exchanged for a beneficial interest in a Global Note pursuant to
Section 3.06(d).
SECTION 3.05. Legends. (a) Each Global Note shall bear the
legend specified therefor in Exhibit A on the face thereof.
(b) Each Restricted Note shall bear the private placement
legend specified therefor in Exhibit A on the face thereof ("Private Placement
Legend").
SECTION 3.06. Special Transfer Provisions. (a) The following
provisions shall apply with respect to any proposed transfer of an interest in a
Rule 144A Global Note that is a Restricted Note: If (1) the owner of a
beneficial interest in a Rule 144A Global Note wishes to transfer such interest
(or portion thereof) to a non-U.S. person ("Non-U.S. Person") pursuant to
Regulation S and (2) such Non-U.S. Person wishes to hold its interest in the
Notes through a beneficial interest in the Regulation S Global Note,
(i) upon receipt by the Note Custodian and Note Registrar
of:
(A) instructions from the Holder of the Rule
144A Global Note directing the Note Custodian and Note
Registrar to credit or cause to be credited a beneficial
interest in the Regulation S Global Note equal to the
principal amount of the beneficial interest in the Rule 144A
Global Note to be transferred, and
(B) a certificate in the form of Exhibit C from
the transferor, and
(ii) subject to the rules and procedures of DTC, the Note
Custodian and Note Registrar shall increase the Regulation S Global
Note and decrease the Rule 144A Global Note by such amount in
accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global
Note wishes to transfer such interest (or any portion thereof) to a QIB pursuant
to Rule 144A prior to the expiration of the Distribution Compliance Period
therefor,
(i) upon receipt by the Note Custodian and Note Registrar
of:
(A) instructions from the Holder of the
Regulation S Global Note directing the Note Custodian and Note
Registrar to credit or cause to be credited a beneficial
interest in the Rule 144A Global Note equal to the principal
amount of the beneficial interest in the Regulation S Global
Note to be transferred, and
(B) a certificate in the form of Exhibit B duly
executed by the transferor, and
40
(ii) in accordance with the rules and procedures of DTC,
the Note Custodian and Note Registrar shall increase the Rule 144A
Global Note and decrease the Regulation S Global Note by such amount in
accordance with the foregoing.
(c) Other Transfers. Any transfer of Restricted Notes not
described above (other than a transfer of a beneficial interest in a Global Note
that does not involve an exchange of such interest for a Certificated Note or a
beneficial interest in another Global Note, which must be effected in accordance
with applicable law and the rules and procedures of DTC, but is not subject to
any procedure required by this Indenture) shall be made only upon receipt by the
Note Registrar of such opinions of counsel, certificates and/or other
information reasonably required by and satisfactory to it in order to ensure
compliance with the Securities Act or in accordance with Section 3.06(d).
(d) Use and Removal of Private Placement Legends. Upon
the transfer, exchange or replacement of Notes (or beneficial interests in a
Global Note) not bearing (or not required to bear upon such transfer, exchange
or replacement) a Private Placement Legend, the Note Custodian and Note
Registrar shall exchange such Notes (or beneficial interests) for beneficial
interests in a Global Note (or Certificated Notes if they have been issued
pursuant to Section 3.04(c)) that does not bear a Private Placement Legend. Upon
the transfer, exchange or replacement of Notes (or beneficial interests in a
Global Note) bearing a Private Placement Legend, the Note Custodian and Note
Registrar shall deliver only Notes (or beneficial interests in a Global Note)
that bear a Private Placement Legend unless:
(i) such Notes (or beneficial interests) are exchanged in
a Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred
pursuant to a Shelf Registration Statement;
(iii) such Notes (or beneficial interests) are transferred
pursuant to Rule 144 under the Securities Act upon delivery to the Note
Registrar of a certificate of the transferor in the form of Exhibit D
and an Opinion of Counsel reasonably satisfactory to the Note
Registrar;
(iv) such Notes (or beneficial interests) are transferred,
replaced or exchanged after the Resale Restriction Termination Date
therefor; or
(v) in connection with such transfer, exchange or
replacement the Note Registrar shall have received an Opinion of
Counsel and other evidence reasonably satisfactory to it and the
Company to the effect that neither such Private Placement Legend nor
the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the
Holder on or after the Resale Restriction Termination Date therefor. The Holder
of a Global Note may exchange an interest therein for an equivalent interest in
a Global Note not bearing a Private Placement Legend (other than a Regulation S
Global Note) upon transfer of such interest pursuant to any of clauses (i)
through (v) of this paragraph (d). The Company shall deliver to the
41
Trustee an Officers' Certificate promptly upon effectiveness, withdrawal or
suspension of any Registration Statement.
(e) Consolidation of Global Notes and Exchange of
Certificated Notes for Beneficial Interests in Global Notes. If a Global Note
not bearing a Private Placement Legend (other than a Regulation S Global Note)
is Outstanding at the time of a Registered Exchange Offer, any interests in a
Global Note exchanged in such Registered Exchange Offer shall be exchanged for
interests in such Outstanding Global Note.
(f) Retention of Documents. The Note Registrar shall
retain copies of all letters, notices and other written communications received
pursuant to this Article III. 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 Note
Registrar.
(g) Execution, Authentication of Notes, etc. Subject to
the other provisions of this Section, when Notes are presented to the Note
Registrar with a request to register the transfer of such Notes or to exchange
such Notes for an equal principal amount of Notes of other authorized
denominations, the Note Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met; provided
that any Notes presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Note Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing. To permit registrations of transfers
and exchanges and subject to the other terms and conditions of this Article III,
the Company will execute and upon Company Order, the Trustee will authenticate
Certificated Notes and Global Notes at the Note Registrar's request. In
accordance with the Issue Date Registration Rights Agreement, upon the
effectiveness of any Exchange Offer Registration Statement, the Company will
execute and upon Company Order, the Trustee will authenticate Exchange Notes or
Private Exchange Notes, as the case may be, in exchange for Issue Date Notes. In
accordance with a Registration Rights Agreement in respect of Additional Notes,
upon the effectiveness of any Exchange Offer Registration Statement in respect
of such Additional Notes, the Company will execute and upon Company Order, the
Trustee will authenticate Exchange Notes in exchange for such Additional Notes.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of an interest in a Global Note, a
member of, or a participant in, DTC or other Person with respect to the
accuracy of the records of DTC or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or
with respect to the delivery to any participant, member, beneficial
owner or other Person (other than DTC) of any notice (including any
notice of redemption) or the payment of any amount or delivery of any
Notes (or other security or property) under or with respect to such
Notes. All notices and communications to be given to the Holders and
all payments to be made to Holders in respect of the Notes shall be
given or made only to or upon the order of the registered Holders
(which shall be DTC or its nominee in the case of a Global Note). The
rights of beneficial owners in any Global Note shall be exercised
42
only through DTC subject to the applicable rules and procedures of DTC.
The Trustee may rely and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants
and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among DTC participants, members or beneficial
owners in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Notes. If
(a) any mutilated Note is surrendered to the Trustee, or (b) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, and there is delivered to the Company or the Trustee, such security
and/or indemnity, in each case 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
Note has been acquired by a bona fide purchaser, the Company shall execute and
upon receipt of a Company Order the Trustee shall authenticate and deliver, in
exchange for any such mutilated Note or in lieu of any such destroyed, lost or
stolen Note, a replacement Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Note, pay such Note.
Upon the issuance of any replacement Notes under this Section,
the Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and its agents and counsel) connected therewith.
Every replacement Note issued pursuant to this Section in lieu
of any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 Notes 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 Notes.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly provided
for, on the Stated Maturity of such interest shall be paid to the Person in
whose name that Note is registered at the close of business on the Regular
Record Date for such interest payment.
43
Any interest on any Note which is payable, but is not paid or
duly provided for on the Stated Maturity of such interest (or within 15 days
after the Stated Maturity of such interest) and interest on such defaulted
interest at the then applicable interest rate borne by the Notes, to the extent
lawful (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest"), shall forthwith cease to be payable to the Holder in
whose name such Note is registered as of the Regular Record Date; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Subsection (a) or (b) below:
(a) the Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes 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 Note and the date of
the proposed payment (the "Special Payment Date"), and at the same time
the Company shall irrevocably 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 Special Payment Date, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Subsection provided.
Such notice shall be received by the Trustee no less than 30 days prior
to the Special Payment Date. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which Special
Record Date shall be not more than 15 days and not less than 10 days
prior to the Special Payment Date 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 in writing of such Special
Record Date. In the name and at the expense of the Company, the Trustee
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date and Special Payment Date therefor to be
mailed, certified or registered (return receipt requested) first-class
postage prepaid, to each Holder at his address as it appears in the
Note Register, 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 mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (b).
(b) the Company may make payment to the Persons in whose
name the Notes are registered at the close of business on the Special
Record Date of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Notes may be listed, and upon such notice as may be required by
such exchange, unless, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this Subsection, such
manner of payment shall not be deemed practicable by the Trustee
(acting reasonably). The Trustee shall give prompt written notice to
the Company of any such determination.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall
44
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
SECTION 3.09. Persons Deemed Owners. Prior to due presentment
of a Note for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name any Note is
registered on the Note Register as the owner of such Note for the purpose of
receiving payment of principal of, premium, if any, and (subject to Section
3.08) interest on such Note and for all other purposes whatsoever, whether or
not such Note is overdue, and none of the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Note
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.10. Cancellation. All Notes surrendered for payment,
purchase, redemption, registration of transfer or exchange shall be delivered to
the Trustee and, if not already canceled, shall be promptly canceled by it. The
Company or any Restricted Subsidiary may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company or any such Restricted Subsidiary may have acquired in any manner
whatsoever, and all Notes so delivered shall upon receipt of a Company Order be
promptly canceled by the Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled securities held by the
Trustee shall, unless by a Company Order received by the Trustee prior to such
destruction the Company shall direct that the canceled Notes be returned to it,
be destroyed in accordance with its customary procedures and certification of
their destruction delivered to the Company. The Trustee shall provide the
Company a list of all Notes that have been canceled from time to time as
requested by the Company.
SECTION 3.11. Computation of Interest. Interest on the Notes
shall be computed on the basis of a 360-day year of twelve 30-day months.
Whenever interest to be paid hereunder is to be calculated on the basis of a
year of three hundred and sixty (360) days, the yearly rate of interest to which
the rate determined pursuant to such calculation is equivalent is the rate so
determined multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by three hundred and sixty (360). The
foregoing is disclosed herein solely for the purpose of providing the disclosure
required under the Interest Act (Canada).
SECTION 3.12. [Reserved]
SECTION 3.13. Additional Interest Under Registration Rights
Agreements. Under certain circumstances, the Company may be obligated to pay
additional interest to Holders, all as and to the extent set forth in the Issue
Date Registration Rights Agreement or any Registration Rights Agreement
applicable to Additional Notes. The terms thereof are hereby incorporated herein
by reference and such additional interest is deemed to be interest for purposes
of this Indenture.
45
ARTICLE IV
Defeasance and Covenant Defeasance
SECTION 4.01. Company's Option to Effect Defeasance or
Covenant Defeasance. The Company may, at its option by Board Resolution, at any
time, with respect to any Notes, elect to have either Section 4.02 or Section
4.03 be applied to all of the Outstanding Notes (the "Defeased Notes"), this
Indenture and the Security Agreement, upon compliance with the conditions set
forth below in this Article IV.
SECTION 4.02. Defeasance and Discharge. Upon the Company's
exercise under Section 4.01 of the option applicable to this Section, the
Company shall be deemed to have been discharged from its obligations with
respect to the Defeased Notes on the date the conditions set forth below are
satisfied (hereinafter, "defeasance") and each Note Guarantor shall be deemed to
be discharged from its obligations with respect to its Guarantee relating to the
Defeased Notes. For this purpose, such defeasance means that the Company and any
Note Guarantor shall be deemed to have paid and discharged the entire
indebtedness represented by the Defeased Notes, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 4.05 and the other Sections
of this Indenture referred to in clauses (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned (and the Trustee, at the expense of the Company and
upon written request, 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 Defeased Notes to receive,
solely from the trust fund described in Section 4.04 and as more fully set forth
in such Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (b) the Company's obligations
with respect to such Defeased Notes under Sections 3.02, 3.03, 3.07, 10.02 and
10.03, (c) the rights, powers, trusts, duties, indemnities and immunities of the
Trustee hereunder, and (d) this Article IV. Subject to compliance with this
Article IV, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 4.03 with respect
to the Notes.
SECTION 4.03. Covenant Defeasance. Upon the Company's exercise
under Section 4.01 of the option applicable to this Section, the Company shall
be released from its obligations under any covenant or provision contained in
Sections 10.05 through 10.18, inclusive, with respect to the Defeased Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Notes shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants and provisions, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Defeased Notes, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Article, whether directly or
indirectly, by reason of any reference elsewhere herein or in such Defeased
Notes to any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.01(c), (d) or (f) but, except as specified above, the remainder
of this Indenture and such Defeased Notes shall be unaffected thereby.
46
SECTION 4.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.02 or
Section 4.03 to the Defeased Notes:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Notes, (a) United States dollars, (b) U.S. Government Obligations
(which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, sufficient money), or
(c) a combination thereof, in such amounts as will be sufficient, as
reflected in the written report of a nationally recognized firm of
independent public accountants or a nationally recognized investment
banking firm delivered to the Trustee, to pay and discharge (and which
shall be applied by the Trustee to pay and discharge) the principal of,
premium, if any, and interest on, the Defeased Notes on (x) the Stated
Maturity thereof or (y) any date selected by the Company on which the
Defeased Notes may be redeemed in whole at the option of the Company
(such date being referred to as the "Defeasance Redemption Date"), if
(in the case of clause (y)) when electing either defeasance or covenant
defeasance, the Company has delivered to the Trustee an irrevocable
notice to redeem all of the outstanding Notes on the Defeasance
Redemption Date; provided that the Trustee (or such qualifying trustee)
shall have been irrevocably instructed to apply such United States
dollars or the proceeds of such U.S. Government obligations to said
payments with respect to the Notes. For this purpose, "U.S. Government
Obligations" means securities that are (i) direct obligations of the
United States of America for the timely payment of which its full faith
and credit is pledged or (ii) 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) In the case of an election under Section 4.02, the
Company shall have delivered to the Trustee an opinion of Independent
Counsel in the United States to the effect that (A) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable Federal income tax law, in either case
to the effect that the Holders of the Outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income
47
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.
(3) In the case of an election under Section 4.03, the
Company shall have delivered to the Trustee an opinion of Independent
Counsel in the United States to the effect that the Holders of the
Outstanding Notes will not recognize income, gain or loss for Federal
income tax purposes as a result of such 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.
(4) In the case of an election under Section 4.02 and
Section 4.03, the Company shall have delivered to the Trustee an
opinion of Canadian counsel stating that the Company has received from,
or there has been published by, the Canada Customs and Revenue Agency a
ruling, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for Canadian federal, provincial or
territorial income tax or other tax purposes as a result of such
deposit and defeasance and will be subject to Canadian federal,
provincial or territorial income tax or other tax on the same amounts,
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred (and for the purposes of
such opinion, such Canadian counsel shall assume that Holders include
Holders who are not resident in Canada).
(5) No Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as Sections
5.01(g) and 5.01(h) are concerned, at any time during the period ending
on the 121st day after the date of deposit.
(6) Any election under Section 4.02 or Section 4.03 shall
not cause the Trustee to have a conflicting interest with respect to
any securities of the Company.
(7) Any election under Section 4.02 or Section 4.03 shall
not result in a breach or violation of, or constitute a Default under,
this Indenture or a breach or violation of any provision of any
agreement relating to any Indebtedness.
(8) The Company shall have delivered to the Trustee an
Opinion of Independent Counsel in the United States to the effect that
after the 121st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over the other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company.
(10) No event or condition shall exist that would prevent
the Company from making payments of the principal of, premium, if any,
and interest on the Notes on the date of such deposit or at any time
ending on the 121st day after the date of such deposit.
48
(11) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Independent Counsel, each to
the effect that all conditions precedent provided for relating to
either the defeasance under Section 4.02 or the covenant defeasance
under Section 4.03 (as the case may be) have been complied with as
contemplated by this Section.
Opinions of Counsel required to be delivered under this
Section may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of the
Company or government or other officials customary for opinions of the type
required, which certificates shall be limited to matters of fact, including that
various financial covenants have been complied with.
SECTION 4.05. 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 10.03, all United States dollars and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.04 in respect of the Defeased Notes shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall fully pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.04 or the principal and interest
received in respect thereof, other than any such tax, fee or other charge which
by law is for the account of the Holders of the Defeased Notes.
Anything in this Article IV to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon a Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 4.04 which, in the opinion of a nationally recognized firm
of independent public accountants or nationally recognized investment banking
firm expressed in a written report delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
defeasance or covenant defeasance. In the event of an error in any calculation
resulting in a withdrawal hereunder, the Company shall deposit an amount equal
to the amount erroneously withdrawn as promptly as practicable after becoming
aware of such error.
SECTION 4.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or U.S. Government Obligations in
accordance with Section 4.02 or 4.03, as the case may be, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.02 or 4.03, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such United
States dollars or U.S. Government Obligations in accordance with Section 4.02 or
4.03, as the case may be; provided, however, that (a) if the Company makes any
payment to the Trustee or Paying Agent of principal, premium, if
49
any, or interest on any Note following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Notes and the Company shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the United States dollars and U.S. Government
Obligations held by the Trustee or Paying Agent and (b) the Trustee or Paying
Agent shall return all such United States dollars and U.S. Government
Obligations to the Company promptly after receiving a Company Request therefor
at any time, if the Trustee or Paying Agent receives written notice from the
Company that such reinstatement of the Company's obligations has occurred and
continues to be in effect at such time.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default", wherever
used herein, means with respect to any Notes 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) there shall be a default in the payment of any
interest on any Note when it becomes due and payable, and such default
shall continue for a period of 30 days;
(b) there shall be a default in the payment of the
principal of (or premium, if any, on) any Note when and as the same
shall become due and payable at its Maturity (upon acceleration,
optional or mandatory redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company under this
Indenture (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in Section
5.01(a) or (b) or in clauses (ii) or (iii) of this Section 5.01(c)),
and such default or breach shall continue for a period of 30 days after
written notice has been given, by certified mail, (x) to the Company by
the Trustee or (y) to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Notes; (ii)
there shall be a default in the performance or breach of the provisions
of Article VIII; or (iii) the Company shall have failed to make or
consummate a Change of Control Offer in accordance with the provisions
of Section 10.14;
(d) (i) one or more defaults shall have occurred under
any agreements, indentures or instruments under which the Company, a
Note Guarantor or any Restricted Subsidiary of the Company then has
outstanding indebtedness (other than the Series III Preferred Shares)
in excess of $2,500,000 in the aggregate and, if not already matured at
its final maturity in accordance with its terms, such Indebtedness
shall have been accelerated or (ii) one or more defaults shall have
occurred under any agreements, indentures or instruments under which
Xxxxxxxxx International or any of its Subsidiaries then has outstanding
Indebtedness in excess of $7,500,000 in the aggregate and, if not
50
already matured at its final maturity in accordance with its terms,
such Indebtedness shall have been accelerated;
(e) any Guarantee relating to the Notes shall for any
reason cease to be, or be asserted in writing by any Note Guarantor or
the Company not to be, in full force and effect, enforceable in
accordance with its terms, except to the extent contemplated by this
Indenture and any such Guarantee;
(f) one or more final judgments, orders or decrees
(including execution, writ of seizure and sale, sequestration, levy,
assessment, injunction or attachment or other process of court) for the
payment of money shall be entered against (A) the Company, a Note
Guarantor or any Restricted Subsidiary or any of their respective
properties, either individually or in the aggregate, in an amount
exceeding $2,500,000, or (B) Xxxxxxxxx International or any of its
Subsidiaries or any of their respective properties, either individually
or in the aggregate, in an amount exceeding $7,500,000 and, in each
case, shall not be discharged and either (i) enforcement proceedings
shall have been commenced upon such judgment, order or decree or (ii)
there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of an appeal
or otherwise, shall not be in effect;
(g) there shall have been the entry by a court of
competent jurisdiction of (i) a decree or order for relief in respect
of the Company, any Note Guarantor or any Material Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or (ii) a decree or order adjudging the Company, any
Note Guarantor or any Material Restricted Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, any Note Guarantor or any
Material Restricted Subsidiary under any applicable Federal, provincial
or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator, administrator, monitor or similar
official of the Company, any Note Guarantor or any Material Restricted
Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such decree or order
for relief shall continue to be in effect, or any such other decree or
order shall be unstayed and in effect, for a period of 60 consecutive
days;
(h) (i) the Company, any Note Guarantor or any Material
Restricted Subsidiary commences a voluntary case or proceeding under
any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (ii) the Company, any Note Guarantor
or any Material Restricted Subsidiary consents to the entry of a decree
or order for relief in respect of the Company, any Note Guarantor or
such Material Restricted Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, (iii)
the Company, any Note Guarantor or any Material Restricted Subsidiary
files a petition, proposal, notice of intention to file a proposal or
answer or consent seeking reorganization or relief which seeks to stay
or has the effect of staying any creditor under any applicable Federal,
provincial or state law, (iv) the Company, any Note Guarantor or any
Material Restricted Subsidiary (x) consents to the filing of such
petition, proposal, notice of intention to file a proposal or the
appointment
51
of, or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator, administrator, monitor or similar
official of the Company, any Note Guarantor or such Material Restricted
Subsidiary or of any substantial part of its property, (y) makes an
assignment for the benefit of creditors or (z) admits in writing its
inability to pay its debts generally as they become due or (v) the
Company, any Note Guarantor or any Material Restricted Subsidiary takes
any corporate action in furtherance of any such actions in this
paragraph (h);
(i) the Trustee, Collateral Agent and the Holders cease
to have a perfected first priority security interest in any of the
Senior Notes Collateral in accordance with the terms of the Security
Agreement;
(j) the Pledged Agreements shall for any reason cease to
be, or be asserted in writing by any party thereto or the Company not
to be, in full force and effect, or the Pledged Agreements are
terminated, suspended or repudiated by any party thereto, except to the
extent contemplated by this Indenture and the Pledged Agreements;
(k) in any quarterly period after April 1, 2003, the
Company fails to receive in cash a minimum aggregate amount of at least
$4.7 million from (i) payments made by RMI during such quarter pursuant
to the terms of the Support Agreement, (ii) any management fees paid by
Xxxxxxxxx International and its Subsidiaries directly to the Company or
its Wholly Owned Restricted Subsidiaries during such quarter, and (iii)
the Net Dividend Amount paid by Xxxxxxxxx International on its Capital
Stock held by the Company and its Wholly Owned Restricted Subsidiaries
during such quarter (provided that with respect to any period that is
less than a fiscal quarter, the minimum aggregate amount of $4.7
million shall be reduced pro rata by reference to the number of days in
such period, calculated on the basis of a 360-day year of twelve 30-day
months); or
(l) immediately prior to making any repurchase,
redemption, defeasance, retirement, acquisition for value or payment of
redemption amount of the Company's Series III Preferred Shares pursuant
to paragraph (b)(viii) of Section 10.09, the amount to be paid in
connection therewith would, after giving effect to such payment, exceed
the RP Available Amount.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified in
Sections 5.01(g) and (h) with respect to the Company) occurs and is continuing
with respect to the Notes, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Notes may, and the Trustee upon
the request of the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall, declare the principal amount of all the Notes to be
due and payable immediately in an amount equal to the principal amount of the
Notes, together with accrued and unpaid interest, if any, to the date the Notes
shall have become due and payable, by a notice in writing to the Company (and to
the Trustee, if given by Holders) and, if a Credit Facility is in effect, to the
relevant Agent under the Credit Facility in accordance with the terms of the
Intercreditor Agreement, and upon any such declaration such amount shall become
immediately due and payable. If an Event of Default specified in Sections
5.01(g) or (h) occurs with respect to the Company and is continuing, then all
the Notes shall ipso facto become and be
52
immediately due and payable, in an amount equal to the principal amount of the
Notes, together with accrued and unpaid interest, if any, to the date the Notes
become due and payable, without any declaration or other act on the part of the
Trustee or any Holder.
At any time after such declaration or acceleration has been
made with respect to the Notes, and before a judgment or decree for payment of
the money due has been obtained by the Trustee as provided hereinafter in this
Article, the Holders of at least a majority in aggregate principal amount of the
Outstanding Notes, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(a) the Company has paid or irrevocably deposited with
the Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee
under Section 6.07 and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
(ii) all overdue interest on all Notes;
(iii) the principal and the premium, if any, on
any Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates presented therefor by the terms of the Notes, to the
extent that payment of such interest is lawful; and
(iv) interest upon overdue interest at the rate
or rates presented therefor by the terms of the Notes, to the
extent that payment of such interest is lawful; and
(b) all Events of Default with respect to the Notes,
other than the nonpayment of principal of the Notes which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any interest on any
Note 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 Note at the Stated Maturity (upon
acceleration, optional or mandatory redemption, required repurchase or
otherwise) thereof,
The Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes the whole amount then due and payable on such Notes for
principal and premium, if any, and interest, with interest upon the overdue
principal and premium, if any, and, to the extent that
53
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate or rates as may be presented therefor by the terms of
any such Note.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Notes, wherever
situated.
If an Event of Default with respect to any Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes under this Indenture by such
appropriate private or judicial proceedings as the Trustee shall deem most
effectual to protect and enforce 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 therein, or to enforce any other proper
remedy.
The rights and remedies under this Section are in addition to
the other rights and remedies under this Article V or Article XIII.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Company or the property of the Company, the Trustee
(irrespective of whether the principal of the Notes 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 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 Notes 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 property
payable or deliverable on 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 6.07.
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, composition or other
similar arrangement affecting the Notes or the rights of any
54
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by 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 Notes in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money
collected by the Trustee with respect to the Notes pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, 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,
premium, if any, or interest, upon presentation of the Notes 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 6.07;
SECOND: To the payment in full of the amounts then due and
unpaid upon the Notes for principal, premium, if any, and interest, 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 Notes for principal,
premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto as a court of competent jurisdiction shall direct, or to the
Company; provided that all sums due and owing to the Holders and the
Trustee have been paid in full as required by this Indenture.
SECTION 5.07. Limitation on Suits. No Holder of any Notes
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture or the Notes, 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 with respect to Notes;
(b) the Holders of not less than 25% in principal amount
of the outstanding Notes 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, and if requested
have provided, to the Trustee an indemnity satisfactory to the Trustee
in its sole discretion against the costs, expenses and liabilities that
may be incurred in compliance with such request;
55
(d) the Trustee for 60 days after its receipt of such
notice, request and offer (and if requested, provision) 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 in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders of Notes 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 of such Notes, 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 provided in this Indenture and for the equal and ratable benefit of
all the Holders of all Notes.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right on the terms stated
herein, which is absolute and unconditional, to receive payment of the principal
of, premium, if any, and (subject to Section 3.08) interest on such Note on the
respective Stated Maturities expressed in such Note (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 5.09. 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, (a) the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder, and (b)
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
provided in Section 3.07, 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.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Note 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.
56
SECTION 5.12. Control by Holders. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Notes 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 (including, without limitation, Section
5.07) or expose the Trustee to personal liability; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes may on
behalf of the Holders of all the Notes waive any past Default hereunder and its
consequences, except a Default
(a) in the payment of the principal of, premium, if any,
or interest on any Notes, 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 Outstanding Note affected by such modification or
amendment.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note 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 attorneys' 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 Notes to which the suit relates, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, premium, if any,
or interest on any Note on or after the respective Stated Maturities expressed
in such Note (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay, Extension or Usury Laws. The
Company (to the extent that it may lawfully do so) covenants 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 or any usury or other similar
law wherever enacted, now or at any time hereafter in force, which
57
would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes contemplated herein or
in the Notes or which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
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 5.16. Remedies Subject to Applicable Law. All rights,
remedies and powers provided by this Article may be exercised only to the extent
that the exercise thereof does not violate any applicable provision of law in
the premises, and all the provisions of this Indenture are intended to be
subject to all applicable mandatory provisions of law which may be controlling
in the premises and to be limited to the extent necessary so that they will not
render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
ARTICLE VI
The Trustee
SECTION 6.01. Duties of Trustee. (a) If a Default or an Event
of Default with respect to any Notes actually known to the Trustee has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. The Trustee shall not be
charged with knowledge of any Default or Event of Default with respect to any
Notes, Asset Sale or Change of Control unless written notice thereof shall have
been delivered to a Responsible Officer by the Company or any other Person.
(b) Except during the continuance of a Default or an
Event of Default with respect to any Notes actually known to the Trustee:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(2) in the absence of bad faith or wilful misconduct on
its part, the Trustee may with respect to any Notes, conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction of the Holders of a majority in principal amount of
Outstanding Notes relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power confirmed upon the Trustee under this Indenture.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any loss, expense,
fees or 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 loss, expense, fees or financial liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (d) of this Section.
(f) The Trustee shall not be liable for interest on any
money or assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 6.02. Notice of Defaults. Within 30 days after a
Responsible Officer of the Trustee receives notice of the occurrence of any
Default with respect to any Notes, the Trustee shall, at the Company's expense,
transmit by mail to all Holders of such Notes or any other persons entitled to
receive reports pursuant to Trust Indenture Act Section 313(c), as their names
and addresses appear in the Note Register, notice of such Default, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of, premium, if any, or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of such
Notes.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of Trust Indenture Act Sections 315(a) through 315(d):
(a) the Trustee may rely conclusively and shall be
protected in acting or refraining from acting 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 party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
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(c) wherever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to the taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) in
the absence of bad faith on its part, may rely conclusively, upon an
Officers' Certificate and/or an Opinion of Counsel;
(d) the Trustee may consult with counsel and any 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 in accordance with such advice or Opinion of Counsel;
(e) notwithstanding any other provisions contained in
this Indenture, 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 security or
indemnity satisfactory to the Trustee in its sole discretion against
the costs, expenses and liabilities which might be incurred therein or
thereby in compliance with such request or direction;
(f) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of the negligence or
wilful misconduct of the Trustee;
(g) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document; but the Trustee in its
discretion may make such further inquiry or investigation in accordance
with any of the provisions of this Indenture 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 such
relevant books, records and premises of the Company as may be
reasonable, personally or by agent or attorney;
(h) 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; and
(i) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights and powers.
SECTION 6.04. Trustee Not Responsible for Recitals,
Dispositions of Notes or Application of Proceeds Thereof. The recitals contained
herein and in the Notes, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or the Notes, except that the
Trustee represents that
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it is duly authorized to execute and deliver this Indenture, authenticate the
Notes and perform its obligations hereunder and that the statements made by it
in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Notes or the proceeds thereof.
SECTION 6.05. Trustee and Agents May Hold Notes; Collections;
etc. The Trustee, any Paying Agent, Note Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes, with the same rights it would have if it were not the Trustee,
Paying Agent, Note Registrar or such other agent and, subject to Trust Indenture
Act Sections 310 and 311, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee, Paying Agent, Note Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. All moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Except for
funds or securities deposited with the Trustee pursuant to Article IV, the
Trustee shall only be required to invest moneys received by the Trustee, until
used or applied as herein provided, in Temporary Cash Investments in accordance
with the directions of the Company.
SECTION 6.07. Compensation and Indemnification of Trustee and
Its Prior Claim. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder (which, to the extent lawful, shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence, bad faith or
wilful misconduct. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(g) or Section
5.01(h), the expenses (including the reasonable compensation and the expenses
and disbursements of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable Federal
or state bankruptcy, insolvency or other similar law. The Company also covenants
to indemnify the Trustee and each predecessor Trustee, and their respective
officers, agents and employees for, and to hold them harmless against, any
claim, loss, liability, tax, assessment or other governmental charge (other than
taxes applicable to the Trustee's compensation hereunder) or expense incurred
without negligence, bad faith or wilful misconduct on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including enforcement of this Section
and also including any liability which the Trustee may incur as a result of
failure to withhold, pay or report any tax, assessment or other governmental
charge, and the costs and expenses of defending itself against or investigating
any claim of liability in the premises. The obligations of the Company under
this Section to compensate and indemnify the Trustee and each predecessor
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Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute an additional obligation
hereunder and shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee and each predecessor Trustee. As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a lien prior to the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of Holders of particular Notes.
SECTION 6.08. Conflicting Interests. The Trustee shall comply
with the provisions of Section 310(b) of the Trust Indenture Act. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under the Trust Indenture Act Section 310(a)(1) and which shall have a
combined capital and surplus of at least $100,000,000, and have a Corporate
Trust Office in The City of New York to the extent there is such an institution
eligible and willing to serve. If the Trustee does not have an office in The
City of New York, the Trustee shall appoint an agent in The City of New York
reasonably acceptable to the Company to conduct any activities which the Trustee
is required under this Indenture to conduct in The City of New York. The Trustee
may not rescind any such agency without the consent of the Company, which
consent may not be unreasonably withheld, unless the Trustee appoints a
satisfactory replacement or has a Corporate Trust Office in The City of New
York. 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, the Trustee shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 6.10. Resignation and Removal; Appointment of
Successor Trustee. (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 under
Section 6.11.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to any Notes by giving written
notice thereof to the Company. Upon receiving such notice of resignation, the
Company shall use its best efforts to promptly appoint a successor Trustee by
Board Resolution or written instrument executed by authority of the Board of
Directors, a copy of which shall be delivered to the resigning Trustee and a
copy to the successor Trustee. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may, or any Holder
who has been a bona fide Holder of a Note 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. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint a successor
Trustee.
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(c) The Trustee may be removed with respect to any Notes
at any time by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of Trust Indenture Act Section 310(b) with respect to any Notes after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.09 with respect to any Notes and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with
respect to any Notes or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed 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 case, (i) the Company by a Board Resolution may remove the Trustee,
with respect to any Notes or in the case of bankruptcy or insolvency or
receivership pursuant to clause (3) above, with respect to all Notes, or (ii)
subject to Section 5.14, any Holder of any Note who has been a bona fide Holder
of a Note 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 with respect to the
Notes, or in the case of bankruptcy or insolvency or receivership pursuant to
clause (3) above, with respect to all Notes. Such court may thereupon, after
such notice, if any, as it may deem proper, remove the Trustee and appoint a
successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any Notes, or if a vacancy shall occur in
the office of Trustee with respect to any Notes for any cause, the Company, by a
Board Resolution or written instrument executed by authority of the Board of
Directors, shall use its best efforts to promptly appoint a successor Trustee
for such Notes and shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, the Company or a court of competent jurisdiction
has not appointed a successor Trustee, a successor Trustee with respect to such
Notes shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Notes delivered to the Company and the retiring Trustee, and
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to such Notes and
supersede the successor Trustee appointed by the Company with respect to such
Notes. If no successor Trustee shall have been so appointed by the Company or
the Holders of such Notes and accepted appointment in the manner hereinafter
provided, any Holder of a Note who has been a bona fide Holder of a Note for at
least six months may, subject to Section 5.14, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such Notes.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to any Notes and each appointment of a
successor Trustee with respect to any Notes by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Notes as their
names and addresses appear in the Note Register. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office or
agent hereunder.
SECTION 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to the Notes,
every such successor Trustee so appointed 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 under this Indenture with respect to any such
Notes; but, nevertheless, on the written request of the Company or the successor
Trustee, upon payment of its charges then unpaid, such retiring Trustee shall
pay over to the successor Trustee all moneys at the time held by it hereunder
with respect to any such Notes and shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers, duties and
obligations.
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 and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such Trustee or such successor Trustee to secure any
amounts then due such Trustee pursuant to the provisions of Section 6.07.
No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Trustee shall be eligible to act as Trustee under the provisions
of Trust Indenture Act Section 310(a) and this Article VI and shall have a
combined capital and surplus of at least $100,000,000 and have a Corporate Trust
Office or an agent selected in accordance with Section 6.09 in The City of New
York.
Upon acceptance of appointment by any successor Trustee as
provided in this Section, the Company shall give notice thereof to the Holders
of the Notes, by mailing such notice to such Holders at their addresses as they
shall appear on the Note Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Company fails to give such notice within 10 days after acceptance
of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto; provided such
64
Person shall be eligible under Trust Indenture Act Section 310(a) and this
Article VI and shall have a combined capital and surplus of at least
$100,000,000.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Notes
so authenticated; and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes 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 for the certificate of authentication of
the Trustee; provided that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
amalgamation, conversion or consolidation.
SECTION 6.13. Preferential Collection of Claims Against the
Company. If and when the Trustee shall be or become a creditor of the Company,
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company.
ARTICLE VII
Holders' Lists and Reports by Trustee and the Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 10 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Notes as of such
Regular Record Date; and
(b) at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the Company of any
such request, a list of similar form and content to that in subsection
(a) hereof as of a date not more than 15 days prior to the time such
list is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar for Notes, no such list need be furnished with respect to such Notes.
SECTION 7.02. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee or any agent of
either of them shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable or
liable by reason of mailing any material pursuant to a request made under Trust
Indenture Act Section 312.
SECTION 7.03. Reports by Trustee. (a) Within 60 days after May
15 of each year commencing with the first May 15 after the issuance of Notes,
the Trustee shall transmit by
65
mail, at the Company's expense, to all Holders, as their names and addresses
appear in the Note Register, as provided in Trust Indenture Act Section 313(c),
a brief report dated as of such May 15 in accordance with and with respect to
the matters required by Trust Indenture Act Section 313(a).
(b) The Trustee shall promptly transmit to the Company a
copy of any report it transmits to Holders of such Notes pursuant to this
Section.
SECTION 7.04. Reports by the Company. The Company shall do the
following:
(a) file with the Trustee, in accordance with Section
10.17 hereof, and in any event within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company is
required to file with the Commission separately or together with the
Note Guarantors pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall (i)
deliver to the Trustee annual audited financial statements of the
Company and its Restricted Subsidiaries, prepared on a Consolidated
basis in conformity with GAAP, within 120 days after the end of each
fiscal year of the Company, and (ii) file with the Trustee and the
Commission, in accordance with, and so long as not prohibited by, the
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time
by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as is required from time to time by such
rules and regulations (including such rules and regulations, if any,
referred to in Trust Indenture Act Section 314(a)); and
(c) transmit by mail to all Holders or any other persons
entitled to receive a report pursuant to Trust Indenture Act Section
313(c), within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Trust Indenture Act Section
313(c), such summaries of any information, documents and reports
required to be filed by the Company pursuant to Section 10.17 hereunder
and subsections (a) and (b) of this Section as are required and not
prohibited by rules and regulations prescribed from time to time by the
Commission.
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ARTICLE VIII
Consolidation, Merger, Sale of Assets
SECTION 8.01. Company May Merge, Consolidate, etc., Only on
Certain Terms. (a) The Company shall not, in a single transaction or a series of
related transactions, consolidate with, amalgamate or merge with or into any
other Person or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets to any Person or group of
Affiliated Persons, or permit any of its Restricted Subsidiaries to enter into
any such transaction or transactions (other than, in the case of a Restricted
Subsidiary, such a consolidation, amalgamation, merger or transfer with or to
one or more Restricted Subsidiaries) if such transaction or transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of the
Company and its Restricted Subsidiaries on a Consolidated basis to any other
Person or group of Affiliated Persons, unless at the time and after giving
effect thereto:
(i) either (a) the Company shall be the continuing
corporation or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or amalgamated
or the Person which acquires by sale, assignment, conveyance, transfer,
lease or disposition all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries on a Consolidated
basis (the "Surviving Entity") shall be a corporation duly organized
and validly existing under the laws of Canada or any province thereof
or of the United States of America, any state thereof or the District
of Columbia and shall expressly assume, by a supplemental Indenture
hereto (and to the extent necessary, a supplemental Security
Agreement), executed and delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, all the obligations
of the Company under the Notes and this Indenture and the Security
Agreement, and this Indenture and the Security Agreement (and the
Trustee's security interest in the Senior Notes Collateral) will remain
in full force and effect;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) immediately after giving effect to the transaction on
a pro forma basis, the Consolidated Net Worth of the Surviving Entity
is not less than the Consolidated Net Worth of the Company and the
Restricted Subsidiaries immediately prior to the transaction;
(iv) if any of the property or assets of the Company or
any of its Restricted Subsidiaries would thereupon become subject to
any Lien, the provisions of Section 10.11 are complied with; and
(v) the Company or the Surviving Entity shall have
delivered, or caused to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each to the effect that such
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consolidation, merger, amalgamation, transfer, sale, assignment, lease
or other transaction and the supplemental Indenture in respect thereof
comply with the provisions described in this Section 8.01(a) and that
all conditions precedent herein provided for in this Section 8.01(a)
relating to such transaction have been complied with.
(b) None of the Note Guarantors will, in a single
transaction or series of related transactions, consolidate with or merge or
amalgamate with or into any other Person (other than the Company, in which case
the requirements of the foregoing paragraph would apply), or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets on a Consolidated basis to any Person (other than the
Company) if such transaction or transactions, in the aggregate, would result in
a sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of any such Note Guarantor to any
other Person or group of Affiliated Persons, unless at the time and after giving
effect thereto:
(i) either (a) such Note Guarantor shall be the
continuing corporation or (b) the Person (if other than such Note
Guarantor) formed by such consolidation or into which any such Note
Guarantor is merged or amalgamated or the Person which acquires by
sale, assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of such Note Guarantor
shall be a corporation duly organized and validly existing under the
laws of Canada or any province thereof or the United States of America,
any state thereof or the District of Columbia and shall (except where
the Note Guarantor is the continuing corporation) expressly assume, by
a supplemental Indenture hereto (and, to the extent necessary, a
supplemental Security Agreement and supplemental Support Agreement),
executed and delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, all the obligations of such Note Guarantor
under the Notes, this Indenture, the Security Agreement and the Support
Agreement (as applicable), and this Indenture, the Security Agreement
(and the Trustee's security interest in the Senior Notes Collateral)
and Support Agreement (as applicable) shall remain in full force and
effect;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing; and
(iii) such Note Guarantor shall have delivered, or caused
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 consolidation, merger, amalgamation,
sale, assignment, conveyance, transfer, lease or other transaction and
the supplemental Indenture in respect thereof (and, to the extent
necessary, such supplemental Security Agreement and supplemental
Support Agreement) comply with the provisions described in this Section
8.01(b), and that all conditions precedent herein provided for in this
Section 8.01(b) relating to such transactions have been complied with.
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(c) Notwithstanding anything in this Article Eight to the
contrary, any Guarantee by a Restricted Subsidiary of the Notes may be released
in accordance with the provisions of Section 10.12(b).
SECTION 8.02. Successor Substituted. Upon any consolidation,
amalgamation or merger, or any sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets on a
Consolidated basis of the Company or any Note Guarantor in accordance with
Section 8.01 with respect to which the Company or any Note Guarantor is not the
continuing corporation, the successor Person formed by such consolidation or
into which the Company or such Note Guarantor is merged or the successor Person
to which such sale, assignment, conveyance, transfer, lease or disposition is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company or such Note Guarantor, as the case may be, under this
Indenture, with the same effect as if such successor had been named as the
Company or a Note Guarantor, as the case may be, herein. When a successor
assumes all the obligations and covenants of its predecessor under this
Indenture or the Notes, the predecessor shall be released from those obligations
and covenants; provided that, in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal and interest on
the Notes or, in the case of a Note Guarantor, its Guarantee.
Any successor to the Company described in the foregoing
paragraph may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Notes which
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Notes which such successor thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Notes so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Notes theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Notes had been issued at the
date of the execution of this Indenture.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures and Agreements Without
Consent of Holders. Without the consent of any Holders of the Notes, the
Company, each Note Guarantor and the Trustee, at any time and from time to time,
may enter into one or more Indentures supplemental hereto, in form and substance
reasonably satisfactory to the Trustee, for any of the following purposes:
(a) to cure any ambiguity or to correct or supplement any
provision in this Indenture or the Notes which may be defective or
inconsistent with any other provision in this Indenture or the Notes;
69
(b) to evidence the succession of another Person to the
Company or any Note Guarantor, and the assumption by any such successor
of the covenants of the Company or such Note Guarantor, as the case may
be, herein and in the Notes;
(c) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(d) to add Guarantees with respect to the Notes or
release Guarantees as provided by the terms of this Indenture;
(e) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as
additional security, pursuant to the requirements of Section 10.11,
Article XIV, the Security Agreement or otherwise, for the payment and
performance of the Indenture Obligations, in any property or assets,
including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be
granted, to the Trustee pursuant to this Indenture, the Security
Agreement or otherwise;
(f) to add to the covenants of the Company or its
Restricted Subsidiaries, as applicable, for the benefit of the Holders
of the Notes (and if such covenants or the surrender of such right or
power are to be for the benefit of less than all Notes, stating that
such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
Notes), or to surrender any right or power conferred upon the Company
or its Restricted Subsidiaries by this Indenture or the Notes;
(g) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act, as contemplated by Section 9.05 or otherwise;
(h) if necessary, to effect any addition or release of
Senior Notes Collateral permitted under this Indenture or the Security
Agreement;
(i) to evidence and provide the acceptance of the
appointment of a successor Trustee hereunder;
(j) to clarify or make any other provisions with respect
to matters or questions arising under this Indenture or the Notes;
provided that, in each case, such clarification or provision thus made
shall not adversely affect the interests of the Holders; and
(k) to establish any form of Note, as provided in Article
Two, and to provide for the issuance of any Notes as provided in
Article Three and to set forth the terms thereof, and/or to add to the
rights of the Holders of the Notes.
SECTION 9.02. Supplemental Indentures and Agreements with
Consent of Holders. Except as permitted by Section 9.01, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes affected by such supplemental indenture or indentures, by Act
of said Holders delivered to the Company and the Trustee, the
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Company and each Note Guarantor (if a party thereto) and the Trustee may (i)
enter into an indenture or indentures supplemental hereto, in form and substance
reasonably satisfactory to the Trustee, for the purpose of adding any provisions
to or amending, modifying or changing in any manner or eliminating any of the
provisions of this Indenture or the Notes (including, but not limited to, for
the purpose of modifying in any manner the rights of the Holders of the Notes
under this Indenture), (ii) modify or amend the Intercreditor Agreement, the
Support Agreement, and the Security Agreement (except as otherwise provided
therein) or (iii) waive compliance with any provision in this Indenture, the
Notes (other than waivers of past Defaults covered by Section 5.13 and waivers
of covenants which are covered by Section 10.19), the Intercreditor Agreement,
the Support Agreement and the Security Agreement; provided, however, that no
such supplemental indenture, agreement or instrument shall, without the consent
of the Holder of each outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, any Notes or waive a default in the
payment of the principal or interest on any Note or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the coin or currency in
which the principal of any Note 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;
(b) amend, change or modify the obligation of the Company
to make and consummate a Change of Control Offer in the event of a
Change of Control in accordance with Section 10.14, including amending,
changing or modifying any of the provisions or definitions with respect
thereto;
(c) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture
or certain Defaults hereunder and their consequences provided for in
this Indenture or for any modifications or amendments to the
Intercreditor Agreement, the Support Agreement or the Security
Agreement;
(d) modify any of the provisions of this Section or
Section 5.13 or 10.19, except to increase the percentage of Outstanding
Notes required for such actions or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Note affected thereby;
(e) except as otherwise permitted under Article VIII,
consent to the assignment or transfer by the Company or RMI of any of
its respective rights and obligations under this Indenture; or
(f) amend or modify any of the provisions of (i) this
Indenture relating to the ranking of the Notes or any guarantee in any
manner adverse to the Holders or (ii) the International Subordination
Agreement or the RMI Subordination Agreement relating to the
Indebtedness of NBI and the Company under or in respect of the
International
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Intercompany Note and of the Company under the Support Agreement,
respectively, in any manner adverse to the Holders.
Upon the written request of the Company, accompanied by a copy
of a Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.03. Execution of Supplemental Indentures and
Agreements. In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 6.03 hereof) shall be fully protected in relying
upon, an Opinion of Counsel and an Officers' Certificate to the effect that the
execution of such supplemental indenture, agreement or instrument is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture, agreement or instrument which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04. 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 Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. 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 9.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX 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 Notes
modified so as to conform to any such supplemental indenture, in the opinion of
the Trustee and the Board of Directors, may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
outstanding Notes.
SECTION 9.07. Record Date. If the Company shall solicit from
the Holders of any Notes any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders of the Notes
entitled to consent to any supplemental indenture, agreement or instrument or
any waiver, and shall promptly notify the Trustee of any such record date. If a
record date is fixed, those Persons who were Holders of the Notes at such record
date (or their duly designated
72
proxies), and only those Persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. The record date shall be a date no more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such solicitation is completed. No such consent shall be
valid or effective for more than six months after such record date. Subject to
applicable law, until any supplemental indenture, agreement, instrument or
waiver becomes effective, or a consent to it by a Holder of a Note shall cease
to be valid and effective as set forth in the preceding sentence, such consent
is a continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest.
With respect to each Note, the Company will duly and punctually pay the
principal of, premium, if any, and interest on such Note in accordance with the
terms of such Note and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company
will maintain in The City of New York an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The office
of the Trustee at 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Notes may
be presented or surrendered for any or all such purposes, and may from time to
time rescind 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 office or agency.
SECTION 10.03. Money for Note Payments to be Held in Trust.
The Company will, on or before Noon, New York time, on each due date of the
principal of, premium, if any, or interest on, the Notes, deposit with a Paying
Agent (which shall not be the Company) a sum in same-day funds sufficient to pay
the principal, 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
73
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, premium, if any, or interest on, the Notes 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 Notes) in the making of any payment of
principal, premium, if any, or interest on the Notes;
(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; and
(d) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to the duties,
rights and liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to the Notes or for
any other purpose, by the Company Order direct any Paying Agent to pay to the
Trustee all sums held in trust by such Paying Agent in respect of the Notes as
to which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Company in respect of all Notes, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were held
by 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 money.
Any money deposited with the Trustee or any Paying Agent in
trust for the payment of the principal of, premium, if any, or interest on any
Note and remaining unclaimed for two years after such principal and premium, if
any, or interest has become due and payable shall promptly be paid to the
Company upon Company Request; and the Holder of such Note 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 payment to the Company, may at the expense of the
Company cause to be published once, in The New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will promptly be repaid to the Company.
SECTION 10.04. 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 its
74
corporate existence and related rights and franchises (charter and statutory) of
the Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise or the corporate
existence of any such Restricted Subsidiary 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 as a whole and that
the loss thereof would not reasonably be expected to have a material adverse
effect on the ability of the Company to perform its obligations hereunder; and
provided further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Restricted Subsidiary or any of its assets in
compliance with the terms of this Indenture.
SECTION 10.05. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, on or before the date
the same shall become due and payable, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary shown to be due on any tax return of the Company or any Restricted
Subsidiary or otherwise assessed or upon the income, profits or property of the
Company or any Restricted Subsidiary and (b) all material lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any Restricted Subsidiary, except for any Lien
permitted to be Incurred under Section 10.11; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and in respect of which appropriate reserves
(in the good-faith judgment of management of the Company) are being maintained
in accordance with GAAP consistently applied.
SECTION 10.06. Maintenance of Properties. The Company will
cause all material properties owned by the Company or any Restricted Subsidiary
or used or held for use in the conduct of its business or the business of any
Restricted Subsidiary to be maintained and kept in good condition, repair and
working order (ordinary wear and tear excepted) 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 consistent with sound business practice and reasonably
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 the business of the Company and its
Restricted Subsidiaries and not reasonably expected to have a material adverse
effect on the ability of the Company to perform its obligations hereunder.
SECTION 10.07. Insurance. The Company will at all times keep
all of its and its Restricted Subsidiaries' properties which are of an insurable
nature reasonably self-insured or 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 in the same general geographic areas in which the Company and
its Restricted Subsidiaries operate, except where the failure to do so would not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or prospects of the Company
and its Restricted Subsidiaries, taken as a whole.
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SECTION 10.08. Limitation on Indebtedness. The Company will
not, and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness, including any Acquired Indebtedness, but excluding any Permitted
Indebtedness.
SECTION 10.09. Limitation on Restricted Payments. (a) The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend or make any other
distribution or payment on or in respect of the Company's Capital Stock
(including dividends or distributions of the Capital Stock of any
Subsidiary), or make any other payment to the direct or indirect
holders (in their capacities as such) of the Company's Capital Stock
(other than (x) the Permitted Distribution and (y) dividends or
distributions payable in shares of the Company's Qualified Capital
Stock or in options, warrants or other rights to acquire such Qualified
Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any Capital Stock of the Company or any
Capital Stock of any Affiliate of the Company (other than Capital Stock
of any Restricted Subsidiary or Capital Stock of a Person that is, or
immediately following such repurchase will become, a Restricted
Subsidiary), or options, warrants or other rights to acquire such
Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any scheduled
principal payment, sinking fund payment or maturity, any Subordinated
Indebtedness (other than Subordinated Indebtedness owing by the Company
to any Restricted Subsidiary, by any Restricted Subsidiary to the
Company or by any Restricted Subsidiary to any other Restricted
Subsidiary) or make any cash interest payment on the International
Intercompany Note;
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Restricted Subsidiary to any Person (other than
(x) dividends and distributions on Preferred Stock of Restricted
Subsidiaries or (y) dividends and distributions made to any Person on a
pro rata basis consistent with the ownership interests in such Capital
Stock to the owners of such Capital Stock, except that, in the case of
the Capital Stock of a Restricted Subsidiary that has provided a
Guarantee, (i) no Default or Event of Default shall have occurred and
be continuing; and (ii) no holders of any other Indebtedness of the
Company or any Restricted Subsidiary shall have an Acceleration Right);
(v) Incur, create or assume any guarantee of Indebtedness
of any Affiliate of the Company (other than a Restricted Subsidiary of
the Company);
(vi) make any Restricted Investment in any Person; or
(vii) designate any Restricted Subsidiary as an
Unrestricted Subsidiary;
(any of the payments described in paragraphs (i) through (vii) above, other than
any such action that is a Permitted Payment (as defined below), collectively,
"Restricted Payments") unless at the time of and after giving effect to the
proposed Restricted Payment (the amount of any such Restricted Payment, if other
than cash, as determined by the Board of Directors, whose
76
determination shall be conclusive and evidenced by a Board Resolution), (1) no
Default or Event of Default shall have occurred and be continuing; (2) no
holders of any other Indebtedness of the Company or any Restricted Subsidiary
shall have an Acceleration Right; and (3) the aggregate amount expended by the
Company and its Restricted Subsidiary (provided that, in the case of a
Restricted Payment by a Restricted Subsidiary, such Restricted Payment is
calculated for the purposes of this paragraph (3) by multiplying the amount of
the Restricted Payment by the percentage of the Company's common equity interest
in such Restricted Subsidiary at the time of such Restricted Payment) in
connection with all Restricted Payments made subsequent to the Issue Date, taken
together with any payments made pursuant to paragraph (b)(viii) below, shall not
exceed the sum of (without duplication):
(A) 50% of the aggregate cumulative Adjusted Net Cash
Flow of the Company and its Restricted Subsidiaries accrued during the
period (treated as a single accounting period) beginning on the first
day of the Company's fiscal quarter commencing prior to the date of
this Indenture and ending on the last day of the Company's last fiscal
quarter ending prior to the date of the Restricted Payment; plus
(B) the aggregate Net Cash Proceeds received after the
date of this Indenture by the Company from the issuance or sale (other
than to any of its Restricted Subsidiaries) of its Qualified Capital
Stock or any options, warrants or rights to purchase such Qualified
Capital Stock (except, in each case, to the extent such proceeds are
used to purchase, redeem or otherwise retire Capital Stock or
Subordinated Indebtedness of the Company as set forth in (b)(iv) and
(b)(v) below); plus
(C) the aggregate Net Cash Proceeds received after the
date of this Indenture by the Company (other than from any of its
Restricted Subsidiaries) upon the exercise of any options or warrants
to purchase Qualified Capital Stock of the Company subsequent to the
Issue Date (except to the extent such proceeds are used to purchase,
redeem or otherwise retire Capital Stock or Subordinated Indebtedness
of the Company as set forth in (b)(iv) and (b)(v) below); plus
(D) the aggregate amount by which any Permitted
Indebtedness of the Company or any Restricted Subsidiary is reduced
after the date of this Indenture as a result of the conversion or
exchange of debt securities or Redeemable Capital Stock of the Company
that has been converted into or exchanged for Qualified Capital Stock
of the Company to the extent such debt securities or Redeemable Capital
Stock plus the aggregate Net Cash Proceeds received by the Company at
the time of any such conversion or exchange were originally sold for
cash; plus
(E) the aggregate Net Cash Proceeds received after the
Issue Date by the Company from cash capital contributions made to the
Company (other than from a Restricted Subsidiary, and other than cash
capital contributions made pursuant to the Support Agreement); plus
(F) the aggregate Net Cash Proceeds of any (x) sale or
other disposition of Restricted Investments (which Investment was made
after the Issue Date) made by the Company or a Restricted Subsidiary,
(y) dividends or other distributions, whether
77
liquidating or otherwise, from, or the sale of capital stock of, an
Unrestricted Subsidiary, or (z) dividends or other distributions,
whether liquidating or otherwise, from Restricted Investments (which
Investment was made after the Issue Date); plus
(G) with respect to any Unrestricted Subsidiary that is
redesignated by the Board of Directors as a Restricted Subsidiary, an
amount equal to the lower of (x) the fair market value (as determined
by a majority of the Independent Directors of the Board of Directors
and evidenced by a Board Resolution) of the Company's or a Restricted
Subsidiary's interest in such Unrestricted Subsidiary or (y) the amount
of the original Investment by the Company or such Restricted Subsidiary
in such Unrestricted Subsidiary plus any additional Investment made in
such Unrestricted Subsidiary after the date such Subsidiary was so
designated; provided that in determining the amount of the Investment
by the Company or such Restricted Subsidiary in (1) any Subsidiary
designated as an Unrestricted Subsidiary as of the date of this
Indenture, such amount shall be the fair market value of such
Unrestricted Subsidiary as at the date of this Indenture, (2) any
Restricted Subsidiary that is designated as an Unrestricted Subsidiary
after the date of this Indenture, such amount shall be the fair market
value of such Unrestricted Subsidiary as at the date of such
designation, and (3) any Investment made in an Unrestricted Subsidiary
after the date such Subsidiary was so designated, such amount shall be
equal to the cash amount so invested or the fair market value of any
property contributed; plus
(H) Cdn. $30,000,000.
The sum of the amounts provided for in clauses (3)(A) through (3)(H) above, less
the aggregate amount of Restricted Payments made by the Company and its
Restricted Subsidiaries, is referred to in this Indenture as the "RP Available
Amount."
(b) Notwithstanding the foregoing (and, in the case of
clauses (ii) through (viii) below, so long as (1) no Default or Event of Default
shall have occurred and be continuing or shall occur as a consequence of the
actions or payments set forth therein and (2) no holders of any other
Indebtedness of the Company or any Restricted Subsidiary have an Acceleration
Right), the foregoing provisions will not prohibit the following actions
(clauses (i) through (viii) of this subsection (b) being referred to as
"Permitted Payments"):
(i) the payment of any dividend or distribution within 60
days after the date of declaration thereof, if at such date of
declaration such payment would be permitted by the provisions of
paragraph (a) of this Section and such payment will be deemed to have
been paid on such date of declaration for purposes of the calculation
required by paragraph (a) of this Section;
(ii) the payment of any dividend or distribution on (1)
the Series II Preferred Shares (and any Capital Stock issued in
connection with the purchase, redemption, retirement or other
refinancing of the Series II Preferred Shares permitted under this
Indenture), in an amount not to exceed the aggregate dividends paid by
Xxxxxxxxx International to the Company on Class A Common Stock that
corresponds to the number of shares of Class A Common Stock into which
the Series II Preferred Shares are
78
exchangeable and (2) the Series III Preferred Shares (and any Capital
Stock issued in connection with the purchase, redemption, retirement or
other refinancing of the Series III Preferred Shares permitted under
this Indenture), in an amount not to exceed Cdn. $9 million in any
calendar year;
(iii) the payment of any dividend or distribution on the
retractable common shares of the Company in an amount not to exceed the
aggregate cash amount received by the Company from RCL or RMI after the
Issue Date in the form of a Subordinated Intercompany Loan;
(iv) any repurchase, redemption or other acquisition or
retirement of any shares of Capital Stock of the Company in exchange
for (including any such exchange pursuant to the exercise of a
conversion right or privilege in connection with which cash is paid in
lieu of the issuance of fractional shares or scrip), or out of the Net
Cash Proceeds of a substantially concurrent issue and sale for cash
(other than to a Restricted Subsidiary) of, (A) other Qualified Capital
Stock of the Company or (B) in the case of a retraction of the
Company's retractable Capital Stock, shares of Class A common stock of
Xxxxxxxxx International; provided that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are excluded from
clauses (B) and (C) of paragraph (a) of this Section;
(v) any repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the net proceeds of, a
substantially concurrent issuance and sale for cash (other than to any
Restricted Subsidiary of the Company) of, any Qualified Capital Stock
of the Company; provided that the Net Cash Proceeds from the issuance
of such Qualified Capital Stock are excluded from clauses (B) and (C)
of paragraph (a) of this Section;
(vi) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Redeemable Capital Stock) (a
"refinancing") through the issuance of new Subordinated Indebtedness of
the Company; provided that any such new Subordinated Indebtedness (1)
shall be in a principal amount that does not exceed the principal
amount so refinanced (or, if the Subordinated Indebtedness so
refinanced provides for an amount less than the principal amount
thereof to be due and payable upon a declaration or acceleration
thereof, then such lesser amount as of the date of determination), plus
the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of such refinanced Indebtedness and
any reasonable out-of-pocket expenses of the Company Incurred in
connection with such refinancing; (2) has an Average Life to Stated
Maturity greater than the remaining Average Life to Stated Maturity of
the Notes; (3) has a Stated Maturity for its final scheduled principal
payment later than the Stated Maturity for the final scheduled
principal payment of the Notes; and (4) is expressly subordinated in
right of payment to the Notes at least to the same extent as the
Indebtedness to be refinanced;
(vii) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of redemption amount of
the Company's Series III
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Preferred Shares through the issuance of either (1) new Subordinated
Indebtedness of the Company of which not more than 50% in principal
amount of such Subordinated Indebtedness has a Stated Maturity
occurring earlier than that of the Notes, (2) new Redeemable Capital
Stock of the Company, or (3) a combination of clauses (1) and (2)
above; provided, in each case, that such new Subordinated
Indebtedness or Redeemable Capital Stock or combination thereof shall
be in an aggregate principal amount or redemption amount, as the case
may be, that does not exceed the redemption amount of the Series III
Preferred Shares so refinanced plus any reasonable out-of-pocket
expenses of the Company Incurred in connection with such refinancing;
and
(viii) the repurchase, redemption, defeasance, retirement,
acquisition for value or payment of redemption amount of the Company's
Series III Preferred Shares (1) on the mandatory redemption date of
such shares on April 30, 2004 or (2) pursuant to the exercise by the
holder of such shares of the retraction right attached to such shares.
(c) For purposes of this Section, if the Board of
Directors designates a Restricted Subsidiary as an Unrestricted Subsidiary, a
"Restricted Payment" shall be deemed to have been made in an amount equal to the
fair value of the Investment of the Company and its other Restricted
Subsidiaries in such Unrestricted Subsidiary as determined by the Board of
Directors with the concurrence of a majority of the Independent Directors (there
being at least one Independent Director), whose good faith determination shall
be conclusive. If a particular Restricted Payment involves a non-cash payment,
including a distribution of assets, then such Restricted Payment shall be deemed
to be in an amount equal to the fair market value of the non-cash portion of
such Restricted Payment as determined by the Board of Directors, whose good
faith determination shall be conclusive.
SECTION 10.10. Limitation on Transactions with Affiliates. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of the
Company (other than the Company or a Restricted Subsidiary) unless (a) such
transaction or series of related transactions is on terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
would be available in a comparable transaction in arm's-length dealings with an
unrelated third party and (b) with respect to any transaction or series of
related transactions involving aggregate payments in excess of $1,000,000, the
Company delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (a) above and
such transaction or series of related transactions has been approved by a
majority of the Independent Directors of the Board of Directors (or, if the
Company ceases to be a public company, by a majority of the members of the Board
of Directors); provided that any transaction or series of related transactions
otherwise permitted under this paragraph (other than any transaction or series
of related transactions with respect to the making of any Restricted Payment
permitted pursuant to Section 10.09) pursuant to which the Company or any
Restricted Subsidiary shall receive or render value exceeding $5,000,000 shall
not be permitted unless, prior to the consummation of any such transaction or
series of related transactions, the Company shall have received an opinion, from
an independent nationally recognized investment banking firm or firm experienced
in the appraisal or similar
80
review of similar types of transactions, that such transaction is fair to the
Company from a financial point of view; provided further that this covenant
shall not apply to:
(i) transactions or agreements as in effect or securities
outstanding on the date of this Indenture (provided that any amendment
to any existing agreement, and any transaction pursuant to the Business
Opportunities Agreement, shall require approval pursuant to this
covenant; notwithstanding the foregoing, any amendment to the Services
Agreement or the Business Opportunities Agreement shall only require
the approval of a majority of the Independent Directors of the Board of
Directors);
(ii) directors' fees approved by the Board of Directors;
(iii) any employee benefit plan or arrangement entered into
or made available to officers or other employees of the Company or the
Restricted Subsidiaries in the ordinary course of business;
(iv) the performance by RMI, RCL, the Company and any
Restricted Subsidiary of their respective obligations under the Support
Agreement (and the related Contribution Agreement), the Security
Documents and this Indenture or the contribution by RMI or RCL of any
voluntary support amounts to the Company;
(v) for so long as the Company is a public company, any
sale to Xxxxxxxxx International of shares of Capital Stock of Xxxxxxxxx
International held by the Company or its Restricted Subsidiaries for
fair value (as determined by a majority of the Independent Directors of
the Board of Directors); and
(vi) a purchase by RMI or its Affiliates from the Company
or any of its Restricted Subsidiaries and substantially concurrent sale
in an arm's-length transaction by RMI or its Affiliates to a third
party (other than an Affiliate of the Company or RMI) or to Xxxxxxxxx
International of shares of Capital Stock of Xxxxxxxxx International
where the purchase and sale were undertaken at the same price and RMI
delivers an Officers' Certificate to the Trustee certifying that such
purchase and sale of such shares were undertaken at the same price.
SECTION 10.11. Limitation on Liens. (a) The Company will not,
and will not permit any Restricted Subsidiary to, create, incur, assume or
suffer to exist any Lien on any of its assets or properties of any character, or
any shares of Capital Stock or Indebtedness of any Restricted Subsidiary,
without making effective provision for all of the Notes and all other amounts
due under this Indenture to be directly secured equally and ratably with (or, if
the obligation or liability to be secured by such Lien is subordinated in right
of payment to the Notes, prior to) the obligation or liability secured by such
Lien.
(b) The foregoing limitation does not apply to:
(i) Liens (other than on the Capital Stock of NBI (until
and unless the NBI Guarantee shall have been released in accordance
with this Indenture) or any of the Senior Notes Collateral) securing
Indebtedness incurred under the Credit Facility that is permitted to be
incurred under the definition of "Permitted Indebtedness";
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(ii) Liens existing on the Issue Date;
(iii) Liens granted after the Issue Date on any assets or
Capital Stock of the Company or its Restricted Subsidiaries created in
favor of the Holders;
(iv) Liens with respect to the assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a
Restricted Subsidiary to secure Indebtedness owing to the Company or
such other Restricted Subsidiary;
(v) Liens securing Indebtedness which is Incurred to
refinance secured Indebtedness which is permitted to be Incurred under
clause (viii) of the definition of "Permitted Indebtedness"; provided
that such Liens do not extend to or cover any property or assets of the
Company or any Restricted Subsidiary other than the property or assets
securing the Indebtedness being refinanced;
(vi) Liens on any property or assets or capital stock of a
Restricted Subsidiary securing Indebtedness of such Restricted
Subsidiary permitted under the definition of "Permitted Indebtedness";
or
(vii) Permitted Liens.
SECTION 10.12. Limitation on Issuances of Guarantees of
Indebtedness. (a) The Company will not permit any Restricted Subsidiary (other
than NBI), directly or indirectly, to guarantee, assume or in any other manner
become liable with respect to any Indebtedness of the Company (other than
pursuant to a Credit Facility) unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for a
senior Guarantee of the Notes and if such Indebtedness of the Company is by its
terms pari passu with or expressly subordinated to the Notes, any such
assumption, guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be pari passu with or subordinated to such
Restricted Subsidiary's Guarantee to the same extent as such Indebtedness is
pari passu with or subordinated to the Notes.
(b) Notwithstanding the foregoing, any Guarantee by a
Restricted Subsidiary of the Notes that is provided pursuant to the foregoing
paragraph may provide by its terms that it shall be automatically and
unconditionally released and discharged (i) upon any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Company's Capital
Stock in, or all or substantially all the assets of, such Restricted Subsidiary,
which sale, exchange or transfer is in compliance with this Indenture, (ii) if
the Restricted Subsidiary issuing such Guarantee ceases to be a Restricted
Subsidiary or (iii) upon the release by the holders of the Indebtedness of the
Company described in paragraph (a) above of their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all obligations
under such Indebtedness), at a time when (A) no other Indebtedness of the
Company or any Restricted Subsidiary has been guaranteed by such Restricted
Subsidiary or (B) the holders of all such other Indebtedness which is guaranteed
by such Restricted Subsidiary also release their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all obligations
under such Indebtedness).
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SECTION 10.13. Limitation on Sale of Assets. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, consummate an Asset Sale unless:
(i) at least 75% of the proceeds from such Asset Sale are
received in cash (provided that the amount of (A) any Pari Passu
Indebtedness of the Company or Indebtedness of any such Restricted
Subsidiary that is pari passu with any guarantee of the Notes (as shown
on the Company's or such Restricted Subsidiary's most recent balance
sheet or in the notes thereto) of the Company or any such Restricted
Subsidiary that is assumed by the transferee of any asset in connection
with any Asset Sale and (B) any deferred payment obligations received
by the Company or any such Restricted Subsidiary as proceeds of an
Asset Sale that are concurrently with the Asset Sale converted into
cash without recourse to the Company or any of its Restricted
Subsidiaries shall be deemed to be cash for purposes of this provision;
provided further that for purposes of this clause (i), "cash" shall
include any cash proceeds received from the sale of securities received
in an Asset Sale as long as, at the time of such Asset Sale, the
Company or its Restricted Subsidiary, as applicable, has entered into a
legally binding agreement for the sale of such securities and such
securities are sold within 90 days of such Asset Sale; and provided
further that this clause (i) shall not apply to
(x) any contribution, sale or other disposition
of shares of Capital Stock of Xxxxxxxxx International held by
the Company or its Restricted Subsidiaries (other than the
Pledged Share Collateral) to Xxxxxxxxx International or its
Subsidiaries in satisfaction of such portion of any
Indebtedness owed by the Company or any of its Restricted
Subsidiaries to Xxxxxxxxx International or its Subsidiaries
under the International Intercompany Note as is no less than
90% of the aggregate Current Market Price of the shares of
Capital Stock of Xxxxxxxxx International so contributed, sold
or disposed of, so long as and to the extent that the
repayment of such Indebtedness would be permitted under the
provisions of Section 10.09 and Section 10.10, or
(y) any sale of an interest in the Company's
newspaper businesses in the Cayman Islands held through Holcay
Holdings Ltd., or in Costa Rica held through 172847 Canada
Limited, to Xxxxxxxxx International or its Subsidiaries in
satisfaction of such portion of any Indebtedness owed by the
Company or any of its Restricted Subsidiaries to Xxxxxxxxx
International or its Subsidiaries under the International
Intercompany Note as is equal to the fair market value of the
shares or assets so sold, so long as and to the extent that
the repayment of such Indebtedness would be permitted under
the provisions of Section 10.09 and Section 10.10; and
(ii) The Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the fair
market value of the shares or assets sold (as determined by the Board
of Directors of the Company and evidenced by a Board Resolution). The
value of any properties or assets (other than cash) received pursuant
to an Asset Sale shall be determined by the Board of Directors of the
Company and evidenced by a Board Resolution; provided, that if the
value of the asset which is the
83
subject of the Asset Sale is in excess of $5,000,000, the value of the
properties or assets received shall be determined by an independent
nationally recognized investment banking firm or firm experienced in
the appraisal or similar review of similar types of assets.
(b) The Company will, and will cause its Restricted
Subsidiaries to, apply 100% of the Net Cash Proceeds of any Asset Sale:
(i) first, (A) to the extent the Company elects, to the
reinvestment by the Company or such Restricted Subsidiary in properties
and assets that (as determined by the Board of Directors) replace the
properties and assets that were the subject of the Asset Sale or in
properties and assets that will be used in the businesses of the
Company or its Restricted Subsidiaries existing on the date of this
Indenture or in businesses reasonably related thereto or (B) to the
extent the Company elects to the making of an offer to purchase (an
"Offer"), out of such amount of the Net Cash Proceeds as the Company
shall determine to allocate for such purpose (the "Allocated
Proceeds"), a principal amount of Notes equal to the Notes Amount (as
defined in clause (c) below) and (to the extent so required by the
terms of the debt instrument governing such Indebtedness) a principal
amount of Pari Passu Indebtedness equal to the Pari Passu Amount (as
defined in clause (c) below), any such Offer pursuant to this clause
(b)(i)(B) to be conducted in accordance with the procedures set forth
in clause (c) below (substituting the term "Allocated Proceeds" in
place of any reference therein with "Excess Proceeds") and in this
Indenture (with any Deficiency (as defined in clause (c) below)
occurring after such Offer to be excluded from the calculation of
Excess Proceeds and treated the same as a Deficiency occurring after an
Offer made using Excess Proceeds), any such application pursuant to
clauses (A) and (B) to be made within 12 months of receipt of such Net
Cash Proceeds;
(ii) second, to the extent of the balance of such Net Cash
Proceeds after application in accordance with clause (i) above, to make
an Offer to purchase Notes pursuant to and subject to the conditions
set forth below; provided, however, that if the Company elects (or is
required by the terms of any Pari Passu Indebtedness), such Offer may
be made ratably to purchase the Notes and any Pari Passu Indebtedness
of the Company (any Net Cash Proceeds from Asset Sales (excluding any
Deficiency resulting from an Offer made using Allocated Proceeds
pursuant to clause (b)(i)(B)) that are not applied as provided in
clause (i) above shall constitute "Excess Proceeds"); and
(iii) third, to the extent of the balance of any Excess
Proceeds after application in accordance with clauses (i) and (ii)
above, for any general corporate purpose permitted pursuant to the
terms of this Indenture;
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clauses (i)(B) and (ii) above, the Company or such
Restricted Subsidiary will retire such Indebtedness and (in the case of the
Credit Facility, to the extent of any borrowings thereunder that have been
converted to a term loan as permitted under this Indenture) will cause the
related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid or purchased.
84
(c) When the aggregate amount of Excess Proceeds equals
or exceeds $5,000,000, the Company shall apply the Excess Proceeds to the
repayment of the Notes and any Pari Passu Indebtedness required to be
repurchased under the instrument governing such Pari Passu Indebtedness as
follows: (i) the Company shall make an offer to purchase (an "Offer") from all
Holders, in accordance with the procedures set forth in this Indenture, in the
maximum principal amount (expressed as a multiple of $1,000) of Notes that may
be purchased out of an amount (the "Note Amount") equal to the product of such
Excess Proceeds multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Notes, and the denominator of which is the
sum of the outstanding principal amount of the Notes and such Pari Passu
Indebtedness (subject to proration in the event such amount is less than the
aggregate Offered Price (as defined herein) of all Notes tendered) and (ii) to
the extent required by such Pari Passu Indebtedness to permanently reduce the
principal amount of such Pari Passu Indebtedness, the Company shall make an
offer to purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a
"Pari Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to the
excess of the Excess Proceeds over the Note Amount; provided that in no event
shall the Pari Passu Debt Amount exceed the principal amount of such Pari Passu
Indebtedness plus the amount of any premium required to be paid to repurchase
such Pari Passu Indebtedness. The offer price shall be payable in cash in an
amount equal to 100% of the principal amount of the Notes plus accrued and
unpaid interest, if any, to the date (the "Purchase Date") such Offer is
consummated (the "Offered Price"), in accordance with the procedures set forth
below. To the extent that the aggregate Offered Price of the Notes tendered
pursuant to the Offer is less than the Note Amount relating thereto or the
aggregate amount of Pari Passu Indebtedness that is purchased is less than the
Pari Passu Debt Amount (the amount of such shortfall, if any, constituting a
"Deficiency"), the Company may use such Deficiency for any purpose not otherwise
prohibited by this Indenture. Upon completion of the purchase of all Notes
tendered pursuant to an Offer and repurchase of the Pari Passu Indebtedness
pursuant to a Pari Passu Offer, the amount of Excess Proceeds, if any, shall be
reset at zero.
(d) Whenever the aggregate amount of Excess Proceeds
received by the Company exceeds $5,000,000, such Excess Proceeds shall, prior to
the purchase of Notes or any Pari Passu Indebtedness described in paragraph (c)
above, be set aside by the Company in a separate account pending (i) deposit
with the depository or a Paying Agent of the amount required to purchase the
Notes or Pari Passu Indebtedness tendered in an Offer or a Pari Passu Offer and
(ii) delivery by the Company of the Offered Price to the Holders or holders of
Pari Passu Indebtedness tendered in an Offer or a Pari Passu Offer. Such Excess
Proceeds may be invested in Temporary Cash Investments; provided that the
maturity date of any such investment made after the amount of Excess Proceeds
equals or exceeds $5,000,000 shall not be later than the Purchase Date. The
Company shall be entitled to any interest or dividends accrued, earned or paid
on such Temporary Cash Investments; provided that the Company shall not be
entitled to such interest and shall not withdraw such interest from the separate
account, if an Event of Default has occurred and is continuing.
(e) If the Company becomes obligated to make an Offer
pursuant to paragraph (c) above, the Notes shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to Holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act,
85
subject to proration in the event the Note Amount is less than the aggregate
Offered Price of all Notes tendered.
(f) Notwithstanding any other provision hereof, with
respect to the proceeds of an Asset Sale arising from the issuance of Capital
Stock of a Restricted Subsidiary ("Issuance Proceeds"):
(i) Prior to the day following the fifth anniversary of
the original issuance of the Notes, the Company shall not be required
to use Issuance Proceeds to make an Offer to purchase Notes in an
amount in excess of 25% of the original aggregate principal amount of
the Notes. For greater certainty, the maximum amount of the Issuance
Proceeds that may be applied to make an Offer to purchase Notes that
has a date of purchase prior to the day following the fifth anniversary
of the original issuance of the Notes is 25% of the original aggregate
principal amount of the Notes less the aggregate principal amount of
Notes previously purchased pursuant to a purchase offer using Issuance
Proceeds. To the extent the aggregate amount of Notes tendered exceeds
the permitted amount of the Offer, the tendered Notes shall be selected
for repurchase on a pro-rata basis.
(ii) Promptly after the fifth anniversary of the original
issuance of the Notes, the Company shall be required to make an Offer
to purchase Notes in accordance with the requirements set out in
paragraph (c) above, in an aggregate amount equal to the aggregate
amount of Issuance Proceeds in excess of 25% of the principal amount of
the Notes that was not applied to purchase Offers pursuant to the
provisions of this paragraph.
(g) The Company shall comply with the applicable tender
offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with an Offer.
(h) The Company shall not, and shall not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction that would expressly impair the ability of the Company to make an
Offer to purchase the Notes or, if such Offer is made, to pay for the Notes
tendered for purchase.
(i) Notwithstanding anything to the contrary herein,
until and unless the NBI Guarantee shall have been released in accordance with
this Indenture, the Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate an Asset Sale in respect of
any of the Capital Stock or assets and properties of either Sugra or NBI to the
extent that any such Asset Sale would impair the Lien in favor of the Collateral
Agent in the Pledged Share Collateral.
(j) Within 30 days after the date on which the amount of
Excess Proceeds equals or exceeds $5,000,000, the Company shall send by
first-class mail, postage prepaid, to the Trustee and to each Holder of the
Notes, at such Xxxxxx's address appearing in the Note Register, a notice stating
or including:
86
(i) that the Holder of such Notes has the right to
require the Company to repurchase, subject to proration, part or all of
such Xxxxxx's Notes at the Offered Price;
(ii) the Purchase Date;
(iii) the instructions a Holder of such Notes must follow
in order to have its Notes purchased in accordance with paragraph (c)
of this Section;
(iv) (A) the most recently filed annual report on Form
20-F or Form 40-F, as applicable (including audited consolidated
financial statements), of the Company, and any report on Form 6-K of
the Company furnished subsequent to such annual report, other than
reports describing Asset Sales otherwise described in the offering
materials (or corresponding successor reports) (or in the event the
Company is not required to prepare any of the foregoing Forms, the
comparable information required pursuant to Section 10.17), (B) a
description of material developments in the Company's business
subsequent to the date of the latest of such reports, (C) if material,
appropriate pro forma financial information, and (D) such other
information, if any, concerning the business of the Company and its
Restricted Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed investment decision regarding
the Offer;
(v) the Offered Price;
(vi) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 10.02;
(vii) that Notes must be surrendered at least three
Business Days prior to the Purchase Date to the Paying Agent or to an
office or agency referred to in Section 10.02 to collect payment;
(viii) that any Notes not tendered will continue to accrue
interest and that unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the offer
shall cease to accrue interest on and after the Purchase Date; and
(ix) the procedures for withdrawing a tender.
(k) Holders electing to have the Notes purchased
hereunder will be required to surrender such Notes at the address specified in
the notice at least three Business Days prior to the Purchase Date. Holders will
be entitled to withdraw their election to have their Notes purchased pursuant to
this Section if the Company receives, not later than three Business Days prior
to the Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth (1) the name of the Holder, (2) the certificate number of the Note
in respect of which such notice of withdrawal is being submitted, (3) the
principal amount of the Note (which shall be $1,000 or an integral multiple
thereof) delivered for purchase by the Holder as to which his election is to be
withdrawn, (4) a statement that such Xxxxxx is withdrawing such Xxxxxx's
election to have such principal amount of such Note purchased, and (5) the
principal amount, if any, of such Note (which shall be $1,000 or an integral
multiple thereof) that remains subject to the original notice of the Offer and
that has been or will be delivered for purchase by the Company.
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(l) the Company shall (i) not later than the Purchase
Date, accept for payment Notes or portions thereof tendered pursuant to the
Offer, (ii) not later than 11:00 a.m. (New York time) on the Purchase Date,
deposit with the Trustee or with a Paying Agent an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
Purchase Date) sufficient to pay the aggregate Offered Price of all the Notes or
portions thereof which are to be purchased on that date and (iii) not later than
11:00 a.m. (New York time) on the Purchase Date, deliver to the Paying Agent an
Officers' Certificate stating the Notes or portions thereof have been accepted
for payment by the Company.
The Trustee and the Paying Agent shall return to the Company
any cash that remains unclaimed, together with interest, if any, thereon, held
by them for the payment of the Offered Price; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee or a Paying Agent in respect of an Offer exceeds the aggregate Offered
Price of the Notes or portions thereof to be purchased, then the Trustee or a
Paying Agent shall hold such excess for the Company and (y) unless otherwise
directed by the Company in writing, promptly after the Business Day following
the Purchase Date the Trustee or a Paying Agent shall return any such excess to
the Company together with interest or dividends, if any, thereon.
(m) Notes to be purchased shall, on the Purchase Date,
become due and payable at the Offered Price and from and after such date (unless
the Company shall default in the payment of the Offered Price) such Notes shall
cease to bear interest. The Offered Price shall be paid to such Holder promptly
following the later of the Purchase Date and the time of delivery of such Note
to the relevant Paying Agent at the office of such Paying Agent by the Holder
thereof in the manner required. Upon surrender of any such Note for purchase in
accordance with the foregoing provisions, such Note shall be paid by the Company
at the Offered Price; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Purchase Date shall be payable to the
Holders of such Notes, or one or more Predecessor Notes, registered as such on
the relevant Regular Record Dates according to the terms and the provisions of
Section 3.08; provided further that Notes to be purchased are subject to
proration in the event the Excess Proceeds are less than the aggregate Offered
Price of all Notes tendered for purchase, with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased. If any Note tendered for purchase
in accordance with the terms of this Section shall not be so paid upon surrender
thereof by deposit of funds with the Trustee or a Paying Agent in accordance
with paragraph (j) above, the principal thereof (and premium, if any, thereon)
shall, until paid, bear interest from the Purchase Date at the rate borne by
such Note. Any Note that is to be purchased only in part shall be surrendered to
a Paying Agent in accordance with the terms of this Section at the office of
such Paying Agent (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 Xxxxxx's
attorney duly authorized in writing), and the Company shall execute and pursuant
to a Company Order the Trustee shall authenticate and deliver to the Holder of
such Note, without service charge, one or more new Notes of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Note so
surrendered that is not purchased.
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SECTION 10.14. Purchase of Notes upon a Change of Control. (a)
If a Change of Control shall occur at any time, each Holder with respect to
Notes shall have the right to require that the Company purchase such Holder's
Notes, pursuant to an offer described in subsection (b) of this Section (a
"Change of Control Offer"), in whole or in part in integral multiples of $1,000,
at a purchase price (the "Change of Control Purchase Price") in cash in an
amount equal to 101% of the principal amount of such Notes, plus accrued and
unpaid interest, if any, to the date of purchase (the "Change of Control
Purchase Date"), in accordance with the procedures set forth in paragraphs (b),
(c), (d) and (e) of this Section.
(b) Within 30 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice (a "Change of
Control Purchase Notice") of such Change of Control to each Holder by
first-class mail, postage prepaid, to the Trustee and to each Holder at his
address appearing in the Note Register, stating or including:
A. that a Change of Control has occurred, the date of
such event, and that such Holder has the right to require the Company
to repurchase such Holder's Notes at the Change of Control Purchase
Price;
B. the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control, if any);
C. that the Change of Control Offer is being made
pursuant to Section 10.14(a) and that all Notes properly tendered
pursuant to the Change of Control Offer will be accepted for payment at
the Change of Control Offer Purchase Price;
D. the Change of Control Purchase Date, which shall 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 may be necessary for
the Company to comply with the requirements under the Exchange Act;
E. (i) the most recently filed annual report on Form
20-F or Form 40-F, as applicable (including audited consolidated
financial statements), of the Company, and any report on Form 6-K of
the Company furnished subsequent to such annual report (or in the event
the Company is not required to prepare any of the foregoing Forms, the
comparable information required to be prepared by the Company pursuant
to Section 10.17), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of such reports
and (iii) such other information, if any, concerning the business of
the Company and its Restricted Subsidiaries which the Company in good
faith believes will enable such Holders to make an informed investment
decision regarding the Change of Control Offer;
F. the Change of Control Purchase Price;
G. the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 10.02;
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X. that Notes must be surrendered at least three
Business Days prior to the Change of Control Purchase Date to the
Paying Agent at the Office of the Paying Agent or to an office or
agency referred to in Section 10.02 to collect payment;
I. that the Change of Control Purchase Price for any
Note which has been properly tendered and not withdrawn will be paid
promptly following the Change of Control Purchase Date;
J. the procedures for withdrawing a tender of Notes and
Change of Control Purchase Notice;
K. that any Note not tendered will continue to accrue
interest; and
L. that, unless the Company defaults in the payment of
the Change of Control Purchase Price, any Note accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of
Notes, each Holder of a Note in respect of which such proper tender was made
shall (unless the tender of such Note is properly withdrawn) thereafter be
entitled to receive solely the Change of Control Purchase Price with respect to
such Note. Upon surrender of any such Note for purchase in accordance with the
foregoing provisions, such Note shall be paid by the Company at the Change of
Control Purchase Price; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Change of Control Purchase Date shall be
payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such on the relevant Regular Record Dates according to the terms
and the provisions of Section 3.08. If any Note tendered for purchase in
accordance with the provisions of this Section shall not be so paid upon
surrender thereof by deposit of funds with the Paying Agent in accordance with
paragraph (d) below, the principal thereof (and premium, if any, thereon) shall,
until paid, bear interest from the Change of Control Purchase Date at the rate
borne by such Note. Holders electing to have such Notes purchased will be
required to surrender such Notes to the Paying Agent at the address specified in
the notice at least three Business Days prior to the Change of Control Purchase
Date. Any such Notes that are to be purchased only in part shall be surrendered
to a Paying Agent in accordance with the provisions of this Section at the
office of such Paying Agent (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
Xxxxxx's attorney duly authorized in writing), and the Company shall execute and
pursuant to a Company Order the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, one or more new Notes of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of
Control Purchase Date, accept for payment of Notes or portion thereof tendered
pursuant to the Change of Control Offer, (ii) not later than 11:00 a.m. (New
York time) on the Change of Control Purchase Date, deposit with the Paying Agent
an amount of cash sufficient to pay the aggregate Change of Control Purchase
Price of all the Notes or portions thereof which are to be purchased as of the
Change of
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Control Purchase Date and (iii) not later than 11:00 a.m. (New York time) on the
Change of Control Purchase Date, deliver to the Paying Agent an Officers'
Certificate stating the Notes or portions thereof accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so
accepted payment in an amount equal to the Change of Control Purchase Price of
the Notes purchased from each such Holder. Any Notes not so accepted shall be
promptly mailed or delivered by the Paying Agent at the Company's expense to the
Holder thereof. The Company will publicly announce the results of the Change of
Control Offer on the Change of Control Purchase Date. For purposes of this
Section, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control
Purchase Notice may be withdrawn before or after delivery by the Holder to the
Paying Agent at the office of the Paying Agent of the Notes to which such Change
of Control Purchase Notice relates, by means of a written notice of withdrawal
delivered by the Holder to the Paying Agent at the office of the Paying Agent or
to the office or agency referred to in Section 10.02 to which the related Change
of Control Purchase Notice was delivered not later than three Business Days
prior to the Change of Control Purchase Date specifying as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of
which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be
$1,000 or an integral multiple thereof) delivered for purchase by the
Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Xxxxxx is withdrawing such
Xxxxxx's election to have such principal amount of such Note purchased;
and
(5) the principal amount, if any, of such Note (which
shall be $1,000 or an integral multiple thereof) that remains subject
to the original Change of Control Purchase Notice and that has been or
will be delivered for purchase by the Company.
(f) As provided in the Notes, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by either of them for the payment
of the Change of Control Purchase Price; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company pursuant to
clause (ii) of paragraph (d) above exceeds the aggregate Change of Control
Purchase Price of the Notes or portions thereof to be purchased, then the
Trustee or the Paying Agent shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Change of Control Purchase Date, the Trustee or the Paying
Agent shall return any such excess to the Company together with interest, if
any, thereon.
(g) The Company shall comply with the applicable tender
offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with a Change of Control
Offer.
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(h) Notwithstanding the occurrence of a Change of
Control, the Company shall not be obligated to repurchase the Notes pursuant to
a Change of Control Offer, or otherwise comply with this Section, if the Company
has elected to redeem all of the Notes in accordance with Article XI.
The Company shall not, and shall not permit any Subsidiary to,
create or permit to exist or become effective any restriction that would
expressly impair the ability of the Company to make a Change of Control Offer to
purchase the Notes or, if such Change of Control Offer is made, to pay for the
Notes tendered for purchase.
SECTION 10.15. Limitation on Issuance and Sale of Capital
Stock of Restricted Subsidiaries. The Company will not permit:
(a) any Restricted Subsidiary to issue any Capital Stock
(other than to the Company or any Restricted Subsidiary); or
(b) any Person (other than the Company or a Restricted
Subsidiary) to acquire any Capital Stock of any Restricted Subsidiary
from the Company or any Restricted Subsidiary,
except if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would continue to be a Restricted Subsidiary or if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer be a Restricted Subsidiary and the Company's
Investment in such Person after giving effect to such issuance or sale would
have been permitted to be made under the provisions of Section 10.09 as if made
on the date of such issuance or sale (and such Investment shall be deemed to be
an Investment made for the purposes of Section 10.09). The proceeds of any
issuance or sale of such Capital Stock permitted hereby will be treated as Net
Cash Proceeds from an Asset Sale and must be applied in accordance with the
terms of Section 10.13 (including the limitation noted in paragraph (f)
thereof). Notwithstanding the foregoing, no issuance or sale of any Capital
Stock of NBI (other than to the Company or any other Restricted Subsidiary)
shall be permitted.
SECTION 10.16. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a) pay dividends or
make any other distribution on its Capital Stock to the Company or any other
Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (c) make any Investment in the Company or (d) transfer
any of its properties or assets to the Company or any Restricted Subsidiary,
except (i) any encumbrance or restriction pursuant to or in connection with any
agreement as in effect on the date of this Indenture, (ii) any encumbrance or
restriction, with respect to a Restricted Subsidiary that is not a Restricted
Subsidiary of the Company on the date of this Indenture, in existence at the
time such Person becomes a Restricted Subsidiary of the Company and not Incurred
in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Company or any Restricted
Subsidiary and (iv) any encumbrance or restriction existing under
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any amendments, modifications, restatements, renewals, supplements, replacements
or refinancings of the agreements containing the encumbrances or restrictions in
the foregoing clauses (i) and (ii); provided that the terms and conditions of
any such encumbrances or restrictions, taken as a whole, are not materially less
favorable to the Holders than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed, refinanced or replaced.
SECTION 10.17. Provision of Financial Statements. Whether or
not the Company or RMI is subject to Section 13(a) or 15(d) of the Exchange Act,
the Company and RMI will, to the extent permitted under the Exchange Act, file
with, or furnish to, the Commission the annual reports and other documents that
they would have been required to file with, or furnish to, the Commission
pursuant to such Section 13(a) or 15(d), including any information relating to
the Company and RMI as may be required by Regulation S-X under the Exchange Act
or by the Commission, if they were so subject, such documents to be filed with,
or furnished to, the Commission on or prior to the respective dates (the
"Required Filing Dates") by which they would have been required so to file, or
to furnish, such documents if they were so subject; provided that if and for so
long as RMI is no longer subject to Section 13(a) or 15(d) of the Exchange Act,
RMI may satisfy its obligations under this paragraph through the inclusion in
the Company's annual reports and other documents filed with or furnished to the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act (or these
provisions of this Indenture) of audited annual and unaudited quarterly
financial statements for RMI prepared in accordance with GAAP, and reconciled to
United States GAAP; provided further that at such time as RMI may become a 100%
owned Restricted Subsidiary of the Company, RMI may satisfy its obligations
under this paragraph through the inclusion in a footnote to the Company's
consolidated financial statements of financial information for RMI, any other
Guarantors of the Notes that are Subsidiaries of the Company and any
non-Guarantor Subsidiaries, equivalent to that which would be required under
Rule 3-10 of Regulation S-X. The Company will in any event (x) within 15 days of
such Required Filing Date (i) transmit by mail to all Holders, as their names
and addresses appear in the Note Register, without cost to such Holders and (ii)
file with the Trustee copies of the annual reports and other documents
(including the audited annual market value financial statements described above)
which the Company and RMI would have been required to file with, or to furnish
to, the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act if
they were subject to such Sections (subject to the proviso set forth in the
immediately preceding sentence) and (y) if filing or furnishing such documents
by the Company or RMI with the Commission is not permitted under the Exchange
Act, promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any prospective
Holders at the Company's cost.
SECTION 10.18. Statement by Officers as to Default. (a) The
Company and RMI will deliver to the Trustee, on or before a date not more than
45 days after the end of each fiscal quarter and not more than 90 days after the
end of each fiscal year of the Company and RMI ending after the date hereof, a
written statement signed by two executive officers of each of the Company and
RMI, one of whom shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company and RMI, as applicable,
stating whether or not, after a review of the activities of the Company and RMI
during such year or such quarter and of the Company's and RMI's performance
under this Indenture, to the best knowledge, based on such review, of the
signers thereof, each of the Company and RMI has fulfilled all its
93
respective obligations and is in compliance with all conditions and covenants
under this Indenture throughout such year or quarter, as the case may be, and,
if there has been a Default, specifying each Default and the nature and status
thereof.
(b) When any Default or Event of Default has occurred and
is continuing, or if the Trustee or any Holder or 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 followed by hard copy an
Officers' Certificate specifying such Default, Event of Default, notice or other
action, the status thereof and what action the Company is taking or proposes to
take with respect thereto, within five Business Days of its occurrence.
SECTION 10.19. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any covenant or condition set
forth in Sections 10.05 through 10.13 and Sections 10.15 through 10.18 if,
before or after the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the Notes at the time Outstanding
waive such compliance in such instance with such covenant or condition, but no
such waiver shall extend to or affect such covenant 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
covenant or condition shall remain in full force and effect.
SECTION 10.20. Limitation on the Designation of Unrestricted
Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary
as an Unrestricted Subsidiary if (i) such action is in compliance with Section
10.09 of this Indenture and (ii) such action complies with the definition of
"Unrestricted Subsidiaries."
(b) The Board of Directors may not designate any
Unrestricted Subsidiary as a Restricted Subsidiary unless any additional
Indebtedness incurred as a result of giving effect to such action (and treating
any Acquired Indebtedness as having been incurred at the time of such action)
would constitute Permitted Indebtedness.
SECTION 10.21. Additional Amounts. (a) All payments made by
the Company or any of the Note Guarantors under or with respect to the Notes
shall be made free and clear of and without withholding or deduction for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and other liabilities related
thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the
government of Canada or any political subdivision or any authority or agency
therein or thereof having power to tax, or within any other jurisdiction in
which the Company or any such Note Guarantor is organized or is otherwise
resident for tax purposes or any jurisdiction from or through which payment is
made (each a "Relevant Taxing Jurisdiction"), unless it is required to withhold
or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company or any Note Guarantor is so required
to withhold or deduct any amount for or on account of Taxes imposed by a
Relevant Taxing Jurisdiction from any payment made under or with respect to the
Notes, it will be required to pay such additional
94
amounts ("Additional Amounts") as may be necessary so that the net amount
received by Holders (including Additional Amounts) after such withholding or
deduction will not be less than the amount that such Holders would have received
if such Taxes had not been withheld or deducted; provided, however, that the
foregoing obligation to pay Additional Amounts does not apply (1) with respect
to a payment made to a Holder (an "Excluded Holder") (A) with which the Company
or such Note Guarantor does not deal at arm's length (within the meaning of the
Income Tax Act (Canada)) at the time of making such payment, or (B) which is
subject to any Taxes by reason of the existence of any present or former
connection between the relevant Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over the relevant
Holder, if the relevant Holder is an estate, nominee, trust or corporation) and
the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or
the ownership or holding outside of Canada of such Note); or (2) to any estate,
inheritance, gift, sales, excise, transfer, personal property tax or similar
tax, assessment or governmental charge ("Excluded Taxes"); nor will the Company
or any Note Guarantor pay Additional Amounts if the payment could have been made
without such deduction or withholding if the beneficiary of the payment had
presented the Note for payment within 30 days after the date on which such
payment or such Note became due and payable or the date on which payment thereof
is duly provided for, whichever is later (except to the extent that the Holder
would have been entitled to Additional Amounts had the Note been presented on
the last day of such 30-day period).
(c) The Company and each Note Guarantor will also (i)
make such withholding or deduction and (ii) remit the full amount deducted or
withheld to the relevant authority in accordance with applicable law. The
Company and each Note Guarantor will furnish to the Holders, within 30 days
after the date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by the Company or such
Note Guarantor. The Company and each Note Guarantor will indemnify and hold
harmless each Holder (other than an Excluded Holder or with respect to Excluded
Taxes) and upon written request will reimburse each such Holder for the amount
of (1) any Taxes so levied or imposed and paid by such Holder as a result of
payments made under or with respect to the Notes and (2) any Taxes levied or
imposed and paid by such Holder with respect to any reimbursement under clause
(1), but excluding any such Taxes on such Holder's income or net income.
(d) At least 30 days prior to each date on which any
payment under or with respect to the Notes is due and payable, if the Company or
the Note Guarantors will be obligated to pay Additional Amounts with respect to
such payment, the Company and the Note Guarantors will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable and the amounts so payable, and will set forth such other information
necessary to enable the Trustee to pay such Additional Amounts to Holders on the
payment date.
(e) Whenever in this Indenture there is mentioned, in any
context: (1) the payment of principal; (2) purchase prices in connection with a
purchase of Notes; (3) interest; or (4) any other amount payable on or with
respect to any of the Notes, such reference shall be deemed to include payment
of Additional Amounts as described under this heading to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.
(f) The Company and the Note Guarantors will pay any
present or future stamp, court or documentary taxes or any other excise or
property taxes, charges or similar levies
95
that arise in any jurisdiction from the execution, delivery, enforcement or
registration of the Notes, this Indenture or any other document or instrument in
relation thereof, or the receipt of any payments with respect to the Notes,
excluding such taxes, charges or similar levies imposed by any jurisdiction
outside of Canada, the jurisdiction of incorporation of any successor of the
Company or any of the Note Guarantors or any jurisdiction in which a paying
agent is located, and the Company and the Note Guarantors will agree to
indemnify the Holders for any such taxes paid by such Holders.
(g) The obligations of the Company and the Note
Guarantors under this Section 10.21 will survive any termination, defeasance or
discharge of this Indenture and will apply mutatis mutandis to any jurisdiction
in which any successor Person to the Company or any Note Guarantor, as
applicable, is organized or any political subdivision or taxing authority or
agency thereof or therein.
SECTION 10.22. Covenants of RMI, RCL and Sugra. (a) RMI hereby
covenants not to assign the Services Agreement to any other party, other than
(i) pursuant to the pledge of the Services Agreements to the Trustee and the
Collateral Agent under this Indenture and the Security Documents or (ii) a
Permitted Transfer. Additionally, RMI hereby covenants that, for so long as any
of the Notes is outstanding, RMI will not form any other vehicle that would be
used to provide the same services to Xxxxxxxxx International and its
Subsidiaries as those currently provided under the Services Agreements.
(b) RCL hereby covenants to vote its Capital Stock in
RMI, and cause any subsequent holder of Capital Stock of RMI to vote such stock,
so as to cause RMI to comply with its obligations under this Indenture, its
Guarantee, the Support Agreement, the Security Documents and other transaction
agreements. Additionally, RCL hereby covenants that, for so long as any of the
Notes is outstanding, RCL will not form any other vehicle that would be used to
provide the same services to Xxxxxxxxx International and its Subsidiaries as
those currently provided under the Services Agreements. These covenants of RCL
will not be deemed to be a guarantee by RCL of the Notes.
(c) Sugra hereby covenants that, until and unless the NBI
Guarantee shall have been released in accordance with this Indenture, it will
not create, Incur, assume or suffer to exist any Lien on any of its shares of
Capital Stock of NBI. This covenant of Sugra will not be deemed to be a
guarantee by Sugra of the Notes.
SECTION 10.23. Limitation on RMI's Business Activities. RMI
shall not:
(a) Incur any Indebtedness other than its Guarantee of
the Notes (and any refinancings or replacements thereof permitted under
the definition of "Permitted Indebtedness");
(b) Create, Incur, assume or suffer to exist any Lien on
any of its assets or properties of any character; or
(c) engage in any business activities other than (i) the
issuance of the RMI Guarantee, (ii) the performance of its obligations
and pursuit of its rights under the Services Agreements, the Support
Agreement and the Contribution Agreement or its
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rights and obligations existing on the date hereof, (iii) the
transactions contemplated in paragraph (vi) of Section 10.10, and (iv)
activities incidental to those described in this clause (c).
ARTICLE XI
Redemption of Notes
SECTION 11.01. Right of Redemption. The Notes may be redeemed,
at the election of the Company:
(a) as a whole or in part, at any time on or after March
1, 2007, subject to the conditions and at the Redemption Prices
specified in the form of Note or in this Indenture and any Indenture
supplemental hereto with respect to the Notes as provided in Exhibit A,
together with accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record of the Notes on
relevant Regular Record Dates and Special Record Dates to receive
interest due on relevant Interest Payment Dates) to the extent that
this Article does not conflict with the terms of the form of Note;
(b) prior to March 1, 2006, on one or more occasions to
redeem the Notes in an aggregate principal amount not to exceed 35% of
the aggregate principal amount of the Notes originally issued at a
Redemption Price (expressed as a percentage of principal amount) of
111.875%, plus accrued and unpaid interest to the Redemption Date, with
the net cash proceeds contributed to the Company from one or more
Public Equity Offerings; and
(c) as a whole and not in part, upon not less than 30 nor
more than 60 days' notice, at any time, at a Redemption Price equal to
the principal amount thereof plus accrued interest to the date fixed
for redemption only if, as a result of (1) any change in or amendment
to the laws of Canada (or of any political subdivision or taxing
authority therein or thereof) or any regulations or rulings promulgated
thereunder or any change in the official interpretation or official
application of such laws, regulations or rulings (including a judgment,
holding or order by a court of competent jurisdiction), or (2) any
change in the official application or interpretation (including a
judgment, holding or order by a court of competent jurisdiction) of, or
any execution of or amendment to, any treaty or treaties affecting
taxation to which Canada (or such political subdivision or taxing
authority) is a party, which change, amendment or treaty becomes
effective on or after the date of this Indenture:
(i) the Company is or would be required on the
next succeeding due date for a payment with respect to the
Notes to pay any Additional Amounts with respect to the Notes
pursuant to Section 10.21, or
(ii) with respect to any payment due or to become
due under the Guarantees or this Indenture, RMI or NBI is, or
on the next succeeding due date with respect to the Notes
would be, required to pay any Additional Amounts pursuant to
Section 10.21.
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SECTION 11.02. Applicability of Article. Redemption of Notes
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 11.03. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Notes pursuant to Section 11.01 shall be
evidenced by a Company Order and an Officers' Certificate stating that the
Company is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of redemption have
occurred. In case of any redemption at the election of the Company, the Company
shall, not less than 30 nor more than 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice period shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of the
principal amount of the Notes to be redeemed.
SECTION 11.04. Selection by Trustee of Notes to be Redeemed.
(a) If less than all the Notes are to be redeemed, the portions of the Notes to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee (or such shorter period as the Trustee may agree upon), from the
Outstanding Notes not previously called for redemption, by lot or such other
method as the Trustee shall deem fair and reasonable, and the amounts to be
redeemed may be equal to $1,000 or any integral multiple thereof, unless
otherwise provided in the terms of the Notes.
(b) The Trustee shall promptly notify the Company and the
Note Registrar in writing of the Notes selected for redemption and, in the case
of Notes selected for partial redemption, the principal amount thereof to be
redeemed.
(c) For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Note which has been or is to be
redeemed.
SECTION 11.05. Notice of Redemption. (a) Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Notes to be
redeemed, at his address appearing in the Note Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all the Outstanding Notes are to be
redeemed, the identification of the particular Notes to be redeemed;
(iv) in the case of a Note to be redeemed in part, the
principal amount of such Note to be redeemed and that after the
Redemption Date upon surrender of such Note, a new Note or Notes in the
aggregate principal amount equal to the unredeemed portion thereof will
be issued;
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(v) that Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(vi) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note or portion thereof to be
redeemed, and that (unless the Company shall default in payment of the
Redemption Price) interest thereon shall cease to accrue on and after
said date;
(vii) the place or places where such Notes are to be
surrendered for payment of the Redemption Price; and
(viii) the CUSIP number, if any, relating to such Notes.
(b) Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or at the Company's
written request, by the Trustee in the name and at the expense of the Company.
If the Company elects to give notice of redemption, it shall provide the Trustee
with a certificate stating that such notice has been given in compliance with
the requirements of this Section.
(c) Such notice if mailed in the manner herein provided
shall be conclusively presumed to have been given, whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
SECTION 11.06. Deposit of Redemption Price. Prior to 11:00
a.m., New York City time, on any Redemption Date, the Company shall irrevocably
deposit with the Trustee or with a Paying Agent an amount of money in same day
funds sufficient to pay the Redemption Price of, and, except if the Redemption
Date shall be an Interest Payment Date, accrued interest on, all the Notes or
portions thereof which are to be redeemed on that date. The Trustee or the
Paying Agent shall hold in trust for, and return to, the Company promptly after
the Business Day following the Redemption Date any interest or dividends, if
any, earned on amounts deposited with the Trustee or the Paying Agent remaining
after the payment of the aggregate Redemption Price for all Notes to be
redeemed; provided that neither the Trustee nor the Paying Agent shall be under
any obligation to place or invest such funds in an interest bearing account.
SECTION 11.07. Notes Payable on Redemption Date. (a) Notice of
redemption having been given as aforesaid, the Notes so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall not have
deposited funds in accordance with Section 11.06 in respect of the payment of
the Redemption Price and accrued interest) such Notes shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with said
notice, such Note shall be paid by the Company at the Redemption Price together
with accrued interest 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 Notes, or one or more Predecessor
Notes, registered as such on the relevant Regular Record Dates according to the
terms and the provisions of Section 3.08.
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(b) If any Note called for redemption shall not be so
paid upon surrender thereof for redemption, by deposit or segregation of funds
in accordance with Section 11.06, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate then borne by
such Note.
SECTION 11.08. Notes Redeemed or Purchased in Part. Any Note
which is to be redeemed or purchased only in part shall be surrendered to the
Paying Agent at the office or agency maintained for such purpose pursuant to
Section 10.02 (with, if the Company, the Note Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Note Registrar or the Trustee as the case may
be, duly executed by the Holder thereof or such Xxxxxx's attorney duly
authorized in writing), and the Company shall execute, and pursuant to a Company
Order the Trustee shall authenticate and deliver to the Holder of such Note
without service charge, a new Note or Notes, 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 Note so surrendered that is
not redeemed or purchased.
ARTICLE XII
Satisfaction and Discharge
SECTION 12.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to surviving rights of
registration of transfer or exchange of the Notes herein expressly provided for)
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either:
(i) all the Notes theretofore authenticated and
delivered (other than (x) lost, stolen or destroyed Notes
which have been replaced or paid as provided in Section 3.07
and (y) Notes for whose payment United States dollars have
theretofore been irrevocably deposited in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.03) have been delivered to
the Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the
Trustee for cancellation
(x) have become due and payable, or
(y) will become due and payable at
their Stated Maturity within one year, or
(z) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company,
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and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust an amount
sufficient to pay and discharge the entire indebtedness on the
Notes not theretofore delivered to the Trustee for
cancellation, including principal of, premium, if any, and
accrued interest on the Notes at such Maturity, Stated
Maturity or Redemption Date;
(b) the Company has paid all other sums payable hereunder
by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each to the effect that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with and that such
satisfaction and discharge will not result in a breach or violation of,
or constitute a default under, this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07 and,
if United States dollars shall have been deposited with the Trustee pursuant to
subclause (ii) of Subsection (a) of this Section, the obligations of the Trustee
under Section 12.02 and the last paragraph of Section 10.03 shall survive.
SECTION 12.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all United States dollars
deposited with the Trustee pursuant to Section 12.01 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on the Notes for whose payment such United States
dollars have been deposited with the Trustee.
ARTICLE XIII
Guarantees
SECTION 13.01. Guarantees. (a) For value received, RMI, in
accordance with this Article XIII, hereby absolutely, unconditionally and
irrevocably guarantees to the Trustee and the Holders, as if RMI were the
principal debtor, the punctual payment and performance, on demand, when due of
all Indenture Obligations (which for purposes of this Guarantee shall also be
deemed to include all commissions, fees, charges, costs and other expenses
(including reasonable legal fees and disbursements of one counsel) arising out
of or incurred by the Trustee or the Holders in connection with the enforcement
of this Guarantee).
(b) For value received, NBI, in accordance with this
Article XIII, hereby absolutely, unconditionally and irrevocably guarantees to
the Trustee and the Holders, as if NBI were the principal debtor, the punctual
payment and performance, on demand, when due of all Indenture Obligations (which
for purposes of this Guarantee shall also be deemed to include all commissions,
fees, charges, costs and other expenses (including reasonable legal fees and
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disbursements of one counsel) arising out of or incurred by the Trustee or the
Holders in connection with the enforcement of this Guarantee).
SECTION 13.02. Continuing Guarantee; No Right of Set-Off;
Independent Obligation. (a) Each of the Guarantees shall be 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 shall apply to and secure any ultimate balance due or
remaining unpaid to the Trustee (including the fees and expenses of its agents
and counsel) or the Holders; and neither of the Guarantees shall 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. Each of the Note Guarantors covenants and agrees
to comply with all obligations, covenants, agreements and provisions applicable
to it in this Indenture including those set forth in Article VIII and Section
10.17. Without limiting the generality of the foregoing, each of the Note
Guarantors' liability shall extend to all amounts which constitute part of the
Indenture Obligations and would be owed by the Company under this Indenture and
the Notes but for the fact that they are unenforceable, reduced, limited,
impaired, suspended or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
(b) Each of the Note Guarantors hereby guarantees that
the Indenture Obligations will 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 of the Note Guarantors guarantees that the
Indenture Obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Holders.
(d) Each of the Note Guarantors' liability to pay or
perform or cause the performance of the Indenture Obligations under the
Guarantees shall arise forthwith after demand for payment or performance by the
Trustee has been given to such Note Guarantor in accordance with the terms
hereof and in the manner prescribed in Section 1.06 hereof.
(e) Except as provided herein, the provisions of this
Article XIII cover all agreements between the parties hereto relative to the
Guarantees and none of the parties shall be bound by any representation,
warranty or promise made by any Person relative thereto which is not embodied
herein; and it is specifically acknowledged and agreed that the Guarantees have
been delivered by each of the Note Guarantors free of any conditions whatsoever
and that no representations, warranties or promises have been made to any of the
Note Guarantors affecting their liabilities hereunder, and that the Trustee
shall not be bound by any representations, warranties or promises now or at any
time hereafter made by the Company to either of the Note Guarantors.
SECTION 13.03. Guarantees Absolute. The obligations of each of
the Note Guarantors hereunder are independent of the obligations of the Company
under the Notes and this Indenture and a separate action or actions may be
brought and prosecuted against any of the
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Note Guarantors whether or not an action or proceeding is brought against the
Company and whether or not the Company is joined in any such action or
proceeding. The liability of each of the Note Guarantors hereunder is
irrevocable, absolute and unconditional and (to the extent permitted by law) the
liability and obligations of the Note Guarantors hereunder shall not be
released, discharged, mitigated, waived, impaired or affected in whole or in
part by:
(a) any defect or lack of validity or enforceability in
respect of any Indebtedness or other obligation of the Company or any
other Person under this Indenture or the Notes, or any agreement or
instrument relating to any of the foregoing;
(b) any grants of time, renewals, extensions,
indulgences, releases, discharges or modifications which the Trustee or
the Holders may extend to, or make with, the Company, the Note
Guarantors or any other Person, or 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 or departure from, this Indenture or the Notes, including
any increase or decrease in the Indenture Obligations;
(c) the taking of security from the Company, the Note
Guarantors or any other Person, and the release, discharge or
alteration of, or other dealing with, such security;
(d) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary, reduce
or otherwise affect, any of the Indenture Obligations and the
obligations of the Note Guarantors hereunder;
(e) the abstention from taking security from the Company,
the Note Guarantors or any other Person or from perfecting, continuing
to keep perfected or taking advantage of any security;
(f) any loss, diminution of value or lack of
enforceability of any security received from the Company, the Note
Guarantors or any other Person, and including any other guarantees
received by the Trustee;
(g) any other dealings with the Company, the Note
Guarantors or any other Person, or with any security;
(h) the Trustee's or the Holders' acceptance of or
entering into any composition with the Company or the Note Guarantors;
(i) the application by the Holders or the Trustee of all
monies at any time and from time to time received from the Company, the
Note Guarantors or any other Person on account of any indebtedness and
liabilities owing by the Company or the Note Guarantors to the Trustee
or the Holders, in such manner as the Trustee or the Holders deem best
and the changing of such application in whole or in part and at any
time or from time to time, or any manner of application of collateral,
or proceeds thereof, to all or any of the Indenture Obligations, or the
manner of sale of any Collateral;
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(j) the release or discharge of the Company or the Note
Guarantors or of any other Guarantor of the Notes or of any Person
liable directly as surety or otherwise by operation of law or otherwise
for the Notes, other than an express release in writing given by the
Trustee, on behalf of the Holders, of the liability and obligations of
the Note Guarantors hereunder;
(k) any change in the name, business, capital structure
or governing instrument of the Company or the Note Guarantors or any
refinancing or restructuring of any of the Indenture Obligations;
(l) the sale of the Company's or the Note Guarantors'
business or any part thereof;
(m) subject to Section 13.14, any merger, amalgamation or
consolidation, arrangement or reorganization of the Company, the Note
Guarantors, any Person resulting from the merger, amalgamation or
consolidation of the Company or the Note Guarantors with any other
Person or any other successor to such Person or merged, amalgamated or
consolidated Person or any other change in the corporate existence,
structure or ownership of the Company or the Note Guarantors;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets of the Company
or its assets or any resulting discharge of any obligations of the
Company (whether voluntary or involuntary) or of a Note Guarantor or
the loss of corporate existence;
(o) subject to Section 13.14, any arrangement or plan of
reorganization affecting the Company or the Note Guarantors;
(p) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense available to, or
discharge of, the Company or the Note Guarantors; or
(q) any modification, compromise, settlement or release
by the Trustee, or by operation of law or otherwise, of the Indenture
Obligations or the liability of the Company or any other obligor under
the Notes, or of any Collateral, in whole or in part, and any refusal
of payment by the Trustee, in whole or in part, from any other obligor
or other guarantor in connection with any of the Indenture Obligations,
whether or not with notice to, or further assent by, or any reservation
of rights against, the Note Guarantors.
SECTION 13.04. Right to Demand Full Performance. In the event
of any demand for payment or performance by the Trustee from any of the Note
Guarantors hereunder, the Trustee or the Holders shall have the right to demand
their full claim and to receive all dividends or other payments in respect
thereof until the Indenture Obligations shall have been paid in full, and the
Note Guarantors shall continue to be liable hereunder for any balance which may
be owing to the Trustee (including the fees and expenses of its agent and
counsel) or the Holders by the Company under this Indenture and the Notes. The
retention by the Trustee or the Holders of any security, prior to the
realization by the Trustee or the Holders of their rights to such security upon
foreclosure thereon, shall not, as between the Trustee and the Note
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Guarantors, be considered as a purchase of such security, or as payment,
satisfaction or reduction of the Indenture Obligations due to the Trustee or the
Holders by the Company or any part thereof.
SECTION 13.05. Waivers. (a) Each of the Note Guarantors hereby
expressly waives (to the extent permitted by law) notice of the acceptance of
this Guarantee and notice of the existence, renewal, extension or the
nonperformance, nonpayment, or nonobservance on the part of the Company of any
of the terms, covenants, conditions and provisions of this Indenture or the
Notes or any other notice whatsoever to or upon the Company or the Note
Guarantors with respect to the Indenture Obligations. Each of the Note
Guarantors hereby acknowledges communication to it of the terms of this
Indenture and the Notes and all of the provisions therein contained and consents
to and approves the same. Each of the Note Guarantors hereby expressly waives
(to the extent permitted by law) diligence, presentment, protest, and any right
to require a proceeding first against the Company.
(b) Without prejudice to any of the rights or recourses
which the Trustee or the Holders may have against the Company, each of the Note
Guarantors hereby expressly waives (to the extent permitted by law) any right to
require the Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or recourse
against the Company, the Note Guarantors or any other Person;
(ii) value, realize upon, or dispose of any security of
the Company or any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the
Trustee or the Holders may have in law or equity;
before requiring or becoming entitled to demand payment from any Note Guarantor
under this Guarantee.
SECTION 13.06. Note Guarantors Remain Obligated in Event the
Company Is No Longer Obligated to Discharge Indenture Obligations. It is the
express intention of the Trustee and the Note Guarantors that if for any reason
the Company has no legal existence, is or becomes under no legal obligation to
discharge the Indenture Obligations owing to the Trustee or the Holders by the
Company or if any of the Indenture Obligations owing by the Company to the
Trustee or the Holders becomes irrecoverable from the Company by operation of
law or for any reason whatsoever, the Guarantees and the covenants, agreements
and obligations of the Note Guarantors contained in this Article XIII shall
nevertheless be binding upon the Note Guarantors, as principal debtors, until
such time as all such Indenture Obligations have been paid in full to the
Trustee and all Indenture Obligations owing to the Trustee or the Holders by the
Company have been discharged, or such earlier time as Section 4.02 shall apply
to the Notes and the Note Guarantors shall be responsible for the payment
thereof to the Trustee or the Holders upon demand.
SECTION 13.07. Waiver of Rights. Each of the Note Guarantors
agrees (to the extent permitted by law) that it hereby waives and will not in
any manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, exoneration, contribution,
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indemnity or subrogation (whether contractual, under Section 509 of Title Eleven
of the United States Code, under common law or otherwise) or any similar rights
or "claims" (as such term is defined under Title Eleven of the United States
Code), against the Company or any Restricted Subsidiary arising from the
existence of, or performance by, the Note Guarantors under this Guarantee, until
such time as the Indenture Obligations have been paid in full.
SECTION 13.08. Guarantees Are in Addition to Other Security.
The Guarantees shall be in addition to and not in substitution for any other
guarantees or other security which the Trustee may now or hereafter hold in
respect of the Indenture Obligations owing to the Trustee or the Holders by the
Company and (except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of the Note Guarantors any other guarantees or
other security or any moneys or other assets which the Trustee may be entitled
to receive or upon which the Trustee or the Holders may have a claim.
SECTION 13.09. Release of Security Interests. Without limiting
the generality of the foregoing and except as otherwise provided in this
Indenture, each of the Note Guarantors hereby consents and agrees, to the
fullest extent permitted by applicable law, that the rights of the Trustee
hereunder, and the liability of each of the Note Guarantors hereunder, shall not
be affected by any and all releases for any purpose of any Collateral, if any,
from the Liens and security interests created by any document relating thereto
and that this Guarantee 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 the Trustee upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though such
payment had not been made. Notwithstanding any of the foregoing, NBI shall be
released from its obligations as Note Guarantor upon the Company's request if
all of the Designated Class A Shares and Class B Shares owned by NBI and pledged
as part of the Pledged Share Collateral have been released from the security
interest in favor of the Collateral Agent as permitted by and in accordance with
the provisions of this Indenture and/or the Security Agreement.
SECTION 13.10. No Bar to Further Actions. Except as provided
by law, no action or proceeding brought or instituted under this Article XIII
and this Guarantee and no recovery or judgment in pursuance thereof shall be a
bar or defense to any further action or proceeding which may be brought under
this Article XIII and this Guarantee by reason of any further default or
defaults under this Article XIII and this Guarantee or in the payment of any of
the Indenture Obligations owing by the Company.
SECTION 13.11. Failure to Exercise Rights Shall Not Operate as
a Waiver; No Suspension of Remedies. (a) No failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article XIII and this Guarantee shall operate as
a waiver thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or the
exercise of any other rights, powers, privileges or remedies. The rights and
remedies herein provided for are cumulative and not exclusive of any rights or
remedies provided in law or equity.
(b) Nothing contained in this Article XIII shall limit
the right of the Trustee or the Holders to take any action to accelerate the
maturity of the Notes pursuant to Article V or to pursue any rights or remedies
hereunder or under applicable law.
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SECTION 13.12. Trustee's Duties; Notice to Trustee. (a) Any
provision in this Article XIII or elsewhere in this Indenture allowing the
Trustee to request any information or to take any action authorized by, or on
behalf of a Note Guarantor, shall be permissive and shall not be obligatory on
the Trustee except as the Holders may direct in accordance with the provisions
of this Indenture.
(b) The Trustee shall not be required to inquire into the
existence, powers or capacities of the Company, the Note Guarantors or the
officers, directors or agents acting or purporting to act on their respective
behalf.
(c) Notwithstanding the provisions of this Article XIII
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 Notes, unless and until the
Trustee shall have received written notice thereof from a Note Guarantor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.01, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Responsible Officer of the
Trustee shall not have received any such notice from a Note Guarantor at least
three 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, premium, if any, or interest on any Note), 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 three Business Days prior to such
date; nor shall the Trustee be charged with knowledge of the curing of any such
default or the elimination of the act or condition preventing any such payment
unless and until the Responsible Officer of the Trustee shall have received an
Officers' Certificate to such effect.
(d) In the case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article XIII 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 XIII in addition to
or in place of the Trustee; provided, however, that this Section shall not apply
to the Company or any Affiliate of the Company if the Company or such Affiliate
acts as Paying Agent.
SECTION 13.13. Successors and Assigns. All terms, agreements
and conditions of this Article XIII shall extend to and be binding upon each
Note Guarantor and its successors and permitted assigns and shall enure to the
benefit of and may be enforced by the Trustee and its successors and assigns;
provided, however, that neither Note Guarantor may assign any of its rights or
obligations hereunder other than in accordance with Article VIII.
SECTION 13.14. Release of Guarantee. Concurrently with the
payment in full of all of the Indenture Obligations, the Note Guarantors shall
be released from and relieved of its obligations under this Article XIII. Upon
the delivery by the Company to the Trustee of an Officers' Certificate and, if
requested by the Trustee, an Opinion of Counsel to the effect that the
transaction giving rise to the release of the Guarantees was made by the Company
in accordance
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with the provisions of this Indenture and the Notes, the Trustee shall execute
any documents reasonably required in order to evidence the release of each Note
Guarantor from its obligations under the Guarantees. If any of the Indenture
Obligations are revived and reinstated after the termination of the Guarantees,
then all of the obligations of the Note Guarantors under this Guarantee shall be
revived and reinstated as if this Guarantee had not been terminated until such
time as the Indenture Obligations are paid in full, and the Note Guarantors
shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
SECTION 13.15. Execution of Guarantees. To evidence the
Guarantees, each of the Note Guarantors hereby agrees to execute a guarantee
substantially in the form set forth in Exhibit A, to be endorsed on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Note Guarantor by its Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Notes may be manual or facsimile.
SECTION 13.16. Payment Permitted by Note Guarantors if No
Default. Nothing contained in this Article XIII, elsewhere in this Indenture or
in any of the Notes shall prevent a Note Guarantor from making payments at any
time of principal of, premium, if any, or interest on the Notes.
ARTICLE XIV
Security
SECTION 14.01. Security. In order to secure the due and
punctual payment of the Indenture Obligations and the Guarantee Obligations,
when and as the same shall be due and payable, whether on an interest payment
date, at maturity, by acceleration, call for redemption or otherwise, and
performance of all other obligations of the Company and Note Guarantors, to the
Holders or the Trustee under this Indenture and in respect of the Notes,
according to the terms hereof or thereof:
(a) RMI will grant a first priority security interest
over its right, title and interest in and to the Service Agreements,
(b) the Company will grant a first priority security
interest over its right, title and interest in and to the Support
Agreement, and
(c) each of the Company and NBI will grant a first
priority security interest over its right, title and interest in and to
the Pledged Share Collateral,
to the Collateral Agent on behalf of the Trustee and the Holders pursuant to the
Security Documents and to the extent therein provided, no later than the Issue
Date.
At the time the Security Documents are executed:
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(i) RMI will have full right, power and lawful authority
to grant, bargain, sell, release, convey, hypothecate, assign,
mortgage, transfer and confirm, absolutely, its rights and interests
under the Service Agreements,
(ii) the Company will have full right, power and lawful
authority to grant, bargain, sell, release, convey, hypothecate,
assign, mortgage, transfer and confirm, absolutely, its rights and
interests under the Support Agreement, and
(iii) the Company and NBI will have full right, power and
lawful authority to grant, bargain, sell, release, convey, hypothecate,
assign, mortgage, transfer and confirm, absolutely, the property
constituting the Pledged Share Collateral,
each in the manner and form done, or intended to be done, in the Security
Documents, free and clear of all Liens whatsoever, and each of the Company, RMI
and NBI will: (a) for so long as the Notes and the Guarantees are outstanding,
warrant and defend the title to the same against the claims of all Persons
whatsoever (unless the Senior Notes Collateral is released as provided herein,
in the Security Documents or in the Intercreditor Agreement), (b) execute,
acknowledge and deliver to the Collateral Agent and the Trustee such further
assignments, transfers, assurances or other instruments as the Collateral Agent
or the Trustee may require or request and (c) do or cause to be done all such
acts and things as may be necessary or proper, or as may be required by the
Collateral Agent or the Trustee, to assure and confirm to the Collateral Agent
and the Trustee the security interest in the Senior Notes Collateral
contemplated hereby and by the Security Documents, or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Guarantees secured hereby, according to
the intent and purposes herein expressed. The Security Documents will create a
direct and valid Lien on the property constituting the Senior Notes Collateral
as set forth in the Security Documents.
The Senior Notes Collateral shall secure the Indenture
Obligations and the obligations under the Guarantees, and performance of all
other obligations of the Company and Note Guarantors, up to the amount
outstanding from time to time under the Notes. The claims of Holders against the
Senior Notes Collateral will be subject to the Intercreditor Agreement. The
Holders hereby authorize and direct the Trustee, or a Co-Trustee appointed by
the Trustee, to enter into the Intercreditor Agreement on their behalf.
SECTION 14.02. Additional Security. To the extent (i) any
Additional Notes are issued as permitted by this Indenture or (ii) as otherwise
provided in the Indenture or Security Agreement, the assets, properties and
contract rights constituting the Senior Notes Collateral may in the future be
expanded in accordance with the terms of the Security Agreement.
SECTION 14.03. Recording and Opinions. The Company and each of
the Note Guarantors will cause, at their own expense, the Security Documents,
this Indenture and all amendments or supplements thereto to be registered,
recorded and filed or re-recorded, re-filed and renewed in such manner and in
such place or places, if any, as may be required by law in order fully to
preserve and protect the Liens created by the Security Documents on all parts of
the Senior Notes Collateral and to effectuate and preserve the security of the
Holders and all rights of the Trustee and the Collateral Agent.
109
The Company and each of the Note Guarantors shall furnish to
the Trustee:
(a) promptly after the execution and delivery of the
Security Documents, an Opinion of Counsel either (i) stating that, in
the opinion of such counsel, this Indenture and the assignment of the
Senior Notes Collateral intended to be made by the Security Documents
and all other instruments of further assurance or amendment have been
properly recorded, registered and filed to the extent necessary to make
effective the Lien intended to be created by the Security Documents,
and reciting the details of such action or referring to prior opinions
of counsel in which such details are given, and stating that as to the
Security Documents such recording, registering and filing are the only
recordings, registrations and filings necessary to give notice thereof
and that no re-recordings, re-registrations or re-filings are necessary
to maintain such notice, and further stating that all financing
statements, continuation statements (or the equivalent thereof under
the laws of Canada and any other relevant jurisdictions) and other
instruments of further assurance have been executed and filed that are
necessary fully to preserve and protect the rights of the Collateral
Agent on behalf of the Holders and the Trustee hereunder and under the
Security Documents, or (ii) stating that, in the opinion of such
counsel, no such action is necessary to make such Lien and assignment
effective; and
(b) within 30 days after July 1 in each year beginning
with July 1, 2003, an Opinion of Counsel, dated as of such date, either
(a) stating that, in the opinion of such counsel, such action has been
taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of all supplemental indentures, financing
statements, continuation statements (or the equivalent thereof under
the laws of Canada and any other relevant jurisdictions) or other
instruments of further assurance as is necessary to maintain the Lien
of the Security Documents and reciting the details of such action or
referring to prior opinions of counsel in which such details are given,
and stating that all financing statements and continuation statements
or the equivalent thereof under the laws of Canada and any other
relevant jurisdiction have been executed and filed that are necessary
fully to preserve and protect the rights of the Collateral Agent on
behalf of the Holders and the Trustee hereunder and under the Security
Documents, or (b) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
SECTION 14.04. Release and Disposition of Collateral. (a) (a)
The Senior Notes Collateral shall be subject to release solely as permitted
below or in the Security Documents:
(i) upon the payment of all principal, premium, if any,
and interest under this Indenture and the Notes, the Security Documents
shall terminate and the Senior Notes Collateral shall be released from
the Lien created by this Indenture and the Security Documents;
(ii) with respect to any of the Pledged Share Collateral,
in the event of a redemption or repurchase in part of the Notes that is
permitted or required by this Indenture, such number of Designated
Class A Shares and/or Class B Shares shall be released from the
security interest in favor of the Collateral Agent upon the Company's
request in writing to the Collateral Agent and the Trustee, together
with any Officers'
110
Certificate and Opinion of Counsel required under this Indenture, as
bears the same proportion to the total number of Designated Class A
Shares and Class B Shares comprising the Pledged Share Collateral as of
the Issue Date as the proportion of the principal amount of Notes
redeemed or repurchased to the original principal amount of Notes
issued on the Issue Date, provided that the total number of Designated
Class A Shares and Class B Shares comprising the Pledged Share
Collateral after any portion thereof is released from the Lien under
this Indenture and the Security Documents shall have an aggregate
Current Market Price on the date of such release that is not less than
200 percent of the principal amount of Notes remaining Outstanding
after giving effect to such redemption or repurchase;
(iii) with respect to any of the shares of Class A Common
Stock included in the Designated Class A Shares pledged by either of
the Company or NBI as part of the Pledged Share Collateral, such number
of shares of Class A Common Stock out of the Designated Class A Shares
so pledged shall be released from the security interest in favor of the
Collateral Agent as the Company or NBI may request in writing to the
Collateral Agent and the Trustee, together with any Officers'
Certificate required under this Indenture, provided that, concurrent
with the release of such shares, either the Company or NBI deposits
with the Collateral Agent, free and clear of any Liens whatsoever, a
number of shares of Class A Common Stock equal to the number of shares
of Class A Common Stock released pursuant to this provision, in
substitution of the shares of Class A Common Stock so released, such
that after giving effect to this substitution, the total number of
Designated Class A Shares included within the Pledged Share Collateral
immediately prior to such release shall be the same as the number of
Designated Class A Shares immediately after such release, provided
further that the Company delivers to the Trustee and the Collateral
Agent (a) an Officers' Certificate confirming that the shares of Class
A Common Stock of Xxxxxxxxx International delivered to the Collateral
Agent in substitution of the shares of Class A Common Stock requested
to be released are free and clear of any Liens whatsoever, and (b) an
Opinion of Counsel that (i) the Collateral Agent has a valid, perfected
security interest in the substitute shares of Class A Common Stock, and
(ii) either (x) such action has been taken as is necessary to maintain
the continuing validity of the security interest in favor of the
Collateral Agent in the Designated Class A Shares not so substituted or
(y) no such action is necessary to maintain such security interest;
(iv) upon a redemption of all of the Notes effected by the
Company in accordance with Article XI, or legal defeasance effected by
the Company in accordance with Article IV or upon a satisfaction and
discharge effected by the Company in accordance with Article XII, all
of the Senior Notes Collateral shall be released;
(v) upon the deposit by the Company in the Collateral
Account with the Collateral Agent, as security for the Company's
payment obligations with respect to that portion of the outstanding
principal amount of the Notes (the "Cash Collateralized Notes")
specified in a notice to the Trustee, cash in United States dollars,
U.S. Government Obligations, or a combination thereof, in such amounts
(the "Cash Collateralized Note Amount") as will be sufficient, in the
opinion of a recognized firm of independent public accountants
nationally recognized in the United States or in Canada,
111
to pay and discharge the principal of, premium, if any, and interest on
the Cash Collateralized Notes on the Stated Maturity, such number of
Designated Class A Shares and/or Class B Shares as the Company may
request in writing to the Trustee and the Collateral Agent, together
with any Officers' Certificate and Opinion of Counsel required under
this Indenture, shall be released from the Lien under this Indenture
and the Security Documents in favor of the Collateral Agent as bears
the same proportion to the total number of Designated Class A Shares
and Class B Shares comprising the Pledged Share Collateral as of the
Issue Date as the proportion of the aggregate principal amount of the
Cash Collateralized Notes to the original principal amount of Notes
issued on the Issue Date, provided that the total number of Designated
Class A Shares and Class B Shares comprising the Pledged Share
Collateral after any portion thereof is released pursuant to this
provision shall have an aggregate Current Market Price on the date of
such release that is not less than 200 percent of the aggregate
principal amount of Notes outstanding (excluding the Cash
Collateralized Notes); or
(vi) by consent of Holders of 90% or more of the
outstanding principal amount of the Notes, the Holders may elect to
consent to the release of their Lien in the Senior Notes Collateral.
(b) The release of any portion of the Senior Notes
Collateral from the Lien under this Indenture and the Security Documents
pursuant to the terms hereof and of the Security Documents will not be deemed
to impair the security interest under this Indenture in contravention of the
provisions hereof. To the extent applicable, the Company and the Note
Guarantors shall cause Trust Indenture Act Section 314(d) relating to the
release of property from the Lien under the Security Documents to be complied
with. Any certificate or opinion required by Trust Indenture Act Section 314(d)
may be made by an Officer of the Company, except in cases in which Trust
Indenture Act Section 314(d) requires that such certificate or opinion be made
by an independent Person.
SECTION 14.05. Enforcement of Claims Against Collateral. If
the Notes become due and payable prior to their final Stated Maturity for any
reason or are not paid in full at the final Stated Maturity and no payment has
been made following a demand on either of the Guarantees, the Collateral Agent
and the Trustee have the right to foreclose or otherwise realize upon the
relevant Collateral in accordance with instructions from Holders of a majority
in aggregate principal amount of the Notes. The proceeds received by the
Collateral Agent and the Trustee upon a foreclosure or realization will be
applied by the Collateral Agent and the Trustee first to pay the expenses of
such foreclosure or realization and fees and other amounts then payable to the
Collateral Agent and the Trustee under this Indenture, the Intercreditor
Agreement and the Security Documents, and thereafter, to pay all amounts owing
to Holders under this Indenture, the Notes and the Security Documents. Any
remaining proceeds will be payable to the Company or as may otherwise be
required.
SECTION 14.06. Authorization of Actions To Be Taken by the
Trustee. Subject to the provisions of the Security Documents and the
Intercreditor Agreement, the Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Senior Notes Collateral by any acts which may be unlawful or
in violation of the Security Documents and the Intercreditor Agreement, or this
Indenture, and such
112
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Senior Notes Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or governmental enactment,
rule, or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would impair
the security hereunder or be prejudicial to the interest of the Holders or the
Trustee). Notwithstanding anything herein or in any of the Security Documents to
the contrary, subject to Article VI hereof, the Trustee assumes no
responsibility for the validity, perfection, priority or enforceability of the
security interest in any of the Senior Notes Collateral and shall have no
obligation to take any action to procure or maintain such validity, perfection,
priority or enforceability.
* * * *
113
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
XXXXXXXXX INC.
By: /s/ X. X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Director
Attest: /s/ X. Xxxx
------------------------
Name: Xxxxx Xxxx
Title:
RAVELSTON MANAGEMENT INC.,
solely in its capacity as Guarantor
By: /s/ X. X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Director
Attest: /s/ X. Xxxx
------------------------
Name: Xxxxx Xxxx
Title:
504468 N.B. INC., solely in its capacity as
Guarantor
By: /s/ X. X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Director
Attest: /s/ X. Xxxx
------------------------
Name: Xxxxx Xxxx
Title:
THE RAVELSTON CORPORATION LIMITED
By: /s/ X. X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Director
Attest: /s/ X. Xxxx
------------------------
Name: Xxxxx Xxxx
Title:
114
SUGRA LIMITED
By: /s/ X. X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Director
Attest: /s/ X. Xxxx
------------------------
Name: Xxxxx Xxxx
Title:
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Trustee
hereunder
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
115
SCHEDULE 1
PERMITTED INDEBTEDNESS
DEBTOR CREDITOR AMOUNT
------ -------- ------
Xxxxxxxxx Inc. Domgroup Ltd. Cdn. $9,927,102
Sugra Limited The Ravelston Corporation Limited Cdn. $7,632,661
Sugra Limited 3016296 Nova Scotia Company Cdn. $1,090,000
Sugra Limited Sugra (Bermuda) Limited Cdn. $ 776,012
Sugra Limited Xxxxxxxxx Canadian Publishing Holdings Co. Cdn. $ 17,371
Xxxxxxxxx Inc. Xxxxxxxxx Canadian Publishing Holdings Co. Cdn. $ 5,717
Holcay Holdings Ltd. Domgroup Ltd. Cdn. $2,288,052
JP Publishing International Inc. Domgroup Ltd. Cdn. $ 20,521
EXHIBIT A
FORM OF NOTE
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
[Date]
Wachovia Trust Company, National Association
Corporate Trust Administration
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Re: 11.875% Senior Secured Notes due 2011 (the "Notes") of
Xxxxxxxxx Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 10, 2003
(as amended and supplemented from time to time, the "Indenture"), among the
Company, Ravelston Management Inc., 504468 N.B. Inc., The Ravelston Corporation
Limited, Sugra Limited and Wachovia Trust Company, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
This letter relates to the transfer of $________ aggregate principal
amount of Notes [in the case of a transfer of an interest in a Regulation S
Global Note: which represents an interest in a Regulation S Global Note
beneficially owned] by the undersigned (the "Transferor"), to effect the
transfer of such Notes in exchange for an equivalent beneficial interest in the
Rule 144A Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:_________________
Authorized Signature
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
[Date]
Wachovia Trust Company, National Association
Corporate Trust Administration
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Re: 11.875% Senior Secured Notes due 2011 (the "Notes") of
Xxxxxxxxx Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 10, 2003
(as amended and supplemented from time to time, the "Indenture"), among the
Company, Ravelston Management Inc., 504468 N.B. Inc., The Ravelston Corporation
Limited, Sugra Limited and Wachovia Trust Company, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
In connection with the proposed sale of $________ aggregate principal
amount of the Notes [in the case of a transfer of an interest in a Rule 144A
Global Note: which represents an interest in a Rule 144A Global Note
beneficially owned] by the undersigned (the "Transferor"), we confirm that such
sale has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended ("Regulation S"), and, accordingly, we
represent that:
(a) the offer of the Notes 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 we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States or (ii) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount
of Notes being transferred.
In addition, if the sale is made during a Distribution Compliance
Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case
may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_________________
Authorized Signature
EXHIBIT D
FORM OF RULE 144 CERTIFICATION
[Date]
Wachovia Trust Company, National Association
Corporate Trust Administration
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Re: 11.875% Senior Secured Notes due 2011 (the "Notes") of
Xxxxxxxxx Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 10, 2003
(as amended and supplemented from time to time, the "Indenture"), among the
Company, Ravelston Management Inc., 504468 N.B. Inc., The Ravelston Corporation
Limited, Sugra Limited and Wachovia Trust Company, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
In connection with the proposed sale of $________ aggregate principal
amount of the Notes [in the case of a transfer of an interest in a Rule 144A
Global Note: which represents an interest in a Rule 144A Global Note
beneficially owned] by the undersigned (the "Transferor"), we confirm that such
sale has been effected pursuant to and in accordance with Rule 144 under the
Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:_________________
Authorized Signature
EXHIBIT E
FORM OF INTERCREDITOR AGREEMENT
EXHIBIT F
INTERNATIONAL SUBORDINATION AGREEMENT
EXHIBIT G
RMI SUBORDINATION AGREEMENT
EXHIBIT H
SECURITY AGREEMENT
