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Exhibit 4(a)
EXECUTION COPY
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INDENTURE
Between
GST ACQUISITION CORP.
AND
MANUFACTURERS AND TRADERS TRUST COMPANY
Dated as of May 6, 1997
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ............................................. 7.10
(a)(2) ............................................. 7.10
(a)(3) ............................................. N.A.
(a)(4) ............................................. N.A.
(a)(5) ............................................. N.A.
(b) ............................................. 7.8; 7.10
(c) ............................................. N.A.
311(a) ............................................. 7.11
(b) ............................................. 7.11
(c) ............................................. N.A.
312(a) ............................................. 2.5
(b) ............................................. 11.3
(c) ............................................. 11.3
313(a) ............................................. 7.6
(b)(1) ............................................. N.A.
(b)(2) ............................................. 7.6
(c) ............................................. 11.2
(d) ............................................. 7.6
314(a) ............................................. 4.2
4.9; 11.2
(b) ............................................. N.A.
(c)(1) ............................................. 11.4
(c)(2) ............................................. 11.4
(c)(3) ............................................. N.A.
(d) ............................................. N.A.
(e) ............................................. 11.5
(f) ............................................. 4.9
315(a)(1) ............................................. 7.1
315(a)(2) ............................................. 7.1
(b) ............................................. 7.5; 11.2
(c) ............................................. 7.1
(d) ............................................. 7.1
(e) ............................................. 6.11
316(a)(last sentence) ............................................. 11.6
(a)(1)(A) ............................................. 6.5
(a)(1)(B) ............................................. 6.4
(a)(2) ............................................. N.A.
(b) ............................................. 6.7
(c) ............................................. 6.10
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317(a)(1) ............................................................ 6.8
(a)(2) ............................................................ 6.9
(b) ............................................................ 2.4
318(a) ............................................................ 11.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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ARTICLE 1
Definitions and Incorporation by Reference............. 1
SECTION 1.1. Definitions................................................... 1
SECTION 1.2. Other Definitions............................................. 27
SECTION 1.3. Incorporation by Reference of
Trust Indenture Act...................................... 28
SECTION 1.4. Rules of Construction......................................... 28
ARTICLE 2
The Securities........................................... 29
SECTION 2.1. Form and Dating............................................... 29
SECTION 2.2. Execution and Authentication.................................. 31
SECTION 2.3. Registrar and Paying Agent.................................... 32
SECTION 2.4. Paying Agent To Hold Money in
Trust.................................................... 32
SECTION 2.5. Securityholder Lists.......................................... 33
SECTION 2.6. Transfer and Exchange......................................... 33
SECTION 2.7. Replacement Securities........................................ 41
SECTION 2.8. Outstanding Securities........................................ 41
SECTION 2.9. Temporary Securities.......................................... 42
SECTION 2.10. Cancellation.................................................. 42
SECTION 2.11. Defaulted Interest............................................ 42
SECTION 2.12. CUSIP Numbers................................................. 42
ARTICLE 3
Redemption............................................... 43
SECTION 3.1. Notices to Trustee............................................ 43
SECTION 3.2. Selection of Securities To Be
Redeemed................................................. 43
SECTION 3.3. Notice of Redemption.......................................... 43
SECTION 3.4. Effect of Notice of Redemption................................ 44
SECTION 3.5. Deposit of Redemption Price................................... 44
SECTION 3.6. Securities Redeemed in Part................................... 45
SECTION 3.7. Optional Redemption........................................... 45
ARTICLE 4
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Covenants........................................... 46
SECTION 4.1. Payment of Securities......................................... 46
SECTION 4.2. SEC Reports................................................... 46
SECTION 4.3. Limitation on Indebtedness.................................... 46
SECTION 4.4. Limitation on Restricted Payments............................. 51
SECTION 4.5. Limitation on Restrictions on
Distributions from Restricted
Subsidiaries............................................. 56
SECTION 4.6. Limitation on Sales of Assets................................. 58
SECTION 4.7. Limitation on Transactions with
Affiliates.................................................... 60
SECTION 4.8. Change of Control............................................ 62
SECTION 4.9. Compliance Certificate; Notice of
Default.................................................. 63
SECTION 4.10. [Intentionally omitted]....................................... 64
SECTION 4.11. Limitation on Liens........................................... 64
SECTION 4.12. Additional Note Guarantors.................................... 64
SECTION 4.13. Limitation on the Sale or Issuance
of Preferred Stock of Restricted
Subsidiaries............................................. 65
SECTION 4.14. Limitation on Layering........................................ 65
ARTICLE 5
Successor Company........................................ 65
SECTION 5.1. When Company May Merge or Transfer
Assets................................................... 65
ARTICLE 6
Defaults and Remedies.................................... 67
SECTION 6.1. Events of Default............................................. 67
SECTION 6.2. Acceleration.................................................. 68
SECTION 6.3. Other Remedies................................................ 68
SECTION 6.4. Waiver of Past Defaults....................................... 68
SECTION 6.5. Control by Majority........................................... 70
SECTION 6.6. Limitation on Suits........................................... 70
SECTION 6.7. Rights of Holders to Receive
Payment.................................................. 70
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SECTION 6.8. Collection Suit by Trustee.................................... 71
SECTION 6.9. Trustee May File Proofs of Claim.............................. 71
SECTION 6.10. Priorities.................................................... 71
SECTION 6.11. Undertaking for Costs......................................... 71
SECTION 6.12. Waiver of Stay or Extension Laws.............................. 72
ARTICLE 7
Trustee............................................. 72
SECTION 7.1. Duties of Trustee............................................. 72
SECTION 7.2. Rights of Trustee............................................. 73
SECTION 7.3. Individual Rights of Trustee.................................. 75
SECTION 7.4. Trustee's Disclaimer.......................................... 75
SECTION 7.5. Notice of Defaults............................................ 75
SECTION 7.6. Reports by Trustee to Holders................................. 75
SECTION 7.7. Compensation and Indemnity.................................... 76
SECTION 7.8. Replacement of Trustee........................................ 77
SECTION 7.9. Successor Trustee by Merger................................... 78
SECTION 7.10. Eligibility; Disqualification................................. 78
SECTION 7.11. Preferential Collection of Claims
Against Company.......................................... 78
SECTION 7.12. Not Responsible for Recitals or
Issuance of Securities................................... 78
ARTICLE 8
Discharge of Indenture; Defeasance.................. 79
SECTION 8.1. Discharge of Liability on
Securities; Defeasance................................... 79
SECTION 8.2. Conditions to Defeasance...................................... 80
SECTION 8.3. Application of Trust Money.................................... 81
SECTION 8.4. Repayment to Company.......................................... 81
SECTION 8.5. Indemnity for Government
Obligations.............................................. 81
SECTION 8.6. Reinstatement................................................ 82
ARTICLE 9
Amendments.......................................... 82
SECTION 9.1. Without Consent of Holders.................................... 82
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SECTION 9.2. With Consent of Holders....................................... 83
SECTION 9.3. Compliance with Trust Indenture
Act...................................................... 84
SECTION 9.4. Effect of Amendment; Revocation
and Effect of Consents and Waivers....................... 84
SECTION 9.5. Notation on or Exchange of
Securities............................................... 85
SECTION 9.6. Trustee To Sign Amendments.................................... 85
SECTION 9.7. Payment for Consent........................................... 85
ARTICLE 10
Subordination....................................... 86
SECTION 10.1. Agreement To Subordinate...................................... 86
SECTION 10.2. Liquidation, Dissolution,
Bankruptcy............................................... 86
SECTION 10.3. Default on Senior Indebtedness................................ 86
SECTION 10.4. Acceleration a Payment of
Securities............................................... 87
SECTION 10.5. When a Distribution Must Be Paid
Over..................................................... 87
SECTION 10.6. Subrogation................................................... 88
SECTION 10.7. Relative Rights............................................... 88
SECTION 10.8. Subordination May Not Be Impaired
by Company............................................... 88
SECTION 10.9. Rights of Trustee and Paying
Agent.................................................... 88
SECTION 10.10. Distribution or Notice to
Representative........................................... 89
SECTION 10.11. Article 10 Not To Prevent Events
of Default or Limit Right To
Accelerate............................................... 89
SECTION 10.12. Trust Moneys Not Subordinated................................. 89
SECTION 10.13. Trustee Entitled To Rely...................................... 89
SECTION 10.14. Trustee To Effectuate
Subordination............................................ 90
SECTION 10.15. Trustee Not Fiduciary for Holders
of Senior Indebtedness................................... 90
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions............................................... 90
SECTION 10.17. Trustee's Compensation Not
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Prejudiced............................................... 90
ARTICLE 11
Miscellaneous............................................ 91
SECTION 11.1. Trust Indenture Act Controls.................................. 91
SECTION 11.2. Notices....................................................... 91
SECTION 11.3. Communication by Holders with
Other Holders............................................ 92
SECTION 11.4. Certificate and Opinion as to
Conditions Precedent..................................... 92
SECTION 11.5. Statements Required in Certificate
or Opinion............................................... 92
SECTION 11.6. When Securities Disregarded................................... 93
SECTION 11.7. Acts of Holders; Rules by Trustee,
Paying Agent and Registrar............................... 93
SECTION 11.8. Legal Holidays................................................ 94
SECTION 11.9. Governing Law................................................. 94
SECTION 11.10. No Recourse Against Others.................................... 94
SECTION 11.11. Successors.................................................... 94
SECTION 11.12. Multiple Originals............................................ 94
SECTION 11.13. Table of Contents; Headings................................... 94
SECTION 11.14. Separability.................................................. 94
SECTION 11.15. Benefits of Indenture......................................... 94
EXHIBIT A Form of Initial Security
EXHIBIT B Form of Exchange Security
EXHIBIT C Transferee Letter of Representation
EXHIBIT D Form of First Supplemental Indenture (Assignment and
Assumption)
EXHIBIT E Form of Supplemental Indenture (Guarantee)
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Exhibit 4A
INDENTURE dated as of May 6, 1997, between GST Acquisition
Corp., a Delaware corporation ("GST"), and Manufacturers and Traders Trust
Company, a New York trust company (the "Trustee").
For good and valuable consideration, the receipt of which is
hereby acknowledged, each party hereto agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Company's 10 1/2% Senior Subordinated Notes due 2007 (the "Initial Securities")
and, when and if issued as provided in the Exchange and Registration Rights
Agreement of even date herewith, the Company's 10 1/2% Senior Subordinated Notes
due 2007, Series A (the "Exchange Securities", and together with the Initial
Securities, the "Securities").
ARTICLE I.
Definitions and Incorporation by Reference
SECTION A. Definitions.
"Additional Assets" means (i) any property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Related Business; (ii) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (iii) Capital Stock of
any Person that at such time is a Restricted Subsidiary, acquired from a third
party; provided, however, that, in the case of clauses (ii) and (iii), such
Restricted Subsidiary is primarily engaged in a Related Business.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Premium" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the then outstanding principal
amount of such Security and (ii) the excess of (A) the present value of all
remaining required interest and principal payments due on such Security,
computed using a discount rate equal to the Treasury Rate plus 75 basis points,
over (B) the then-outstanding principal amount of such Security.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares, or (in the case of a Foreign Subsidiary) to the
extent required by applicable law), property
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or other assets (each referred to for the purposes of this definition as a
"disposition") by the Company or any of its Restricted Subsidiaries (including
any disposition by means of a merger, consolidation or similar transaction)
other than (i) a disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Restricted Subsidiary, (ii) a
disposition of inventory, equipment, obsolete assets or surplus personal
property in the ordinary course of business, (iii) the sale of Temporary Cash
Investments or Cash Equivalents in the ordinary course of business, (iv)
dispositions with a fair market value not exceeding $500,000 in the aggregate in
any fiscal year, (v) the sale or discount (with or without recourse, and on
commercially reasonable terms) of accounts receivable or notes receivable
arising in the ordinary course of business, or the conversion or exchange of
accounts receivable for notes receivable, (vi) the licensing of intellectual
property in the ordinary course of business, (vii) for purposes of Section 4.6
only, a disposition subject to Section 4.4 or (viii) a disposition of property
or assets that is governed by Section 5.1.
"Assumption" means the assumption by the Company of all of the
obligations of Holdings (as successor by Merger to GST) under the Indenture and
the Securities pursuant to the First Supplemental Indenture among Telex,
Holdings (as successor by Merger to GST) and the Trustee.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate assumed in making calculations in accordance with FAS 13) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"Bank Indebtedness" means any and all amounts, whether
outstanding on the Issue Date or thereafter incurred, payable under or in
respect of the Senior Credit Facility, including without limitation principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company or
any Restricted Subsidiary whether or not a claim for post-
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filing interest is allowed in such proceedings), fees, charges, expenses,
reimbursement obligations, guarantees, other monetary obligations of any nature
and all other amounts payable thereunder or in respect thereof.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Borrowing Base" means, at any time of determination, the
Borrowing Base as defined in the Senior Credit Agreement.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required by
law to close in New York City.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease.
"Cash Equivalents" means any of the following: (a) securities
issued or fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof, (b) time deposits, certificates of deposit or
bankers' acceptances of (i) any lender under the Senior Credit Agreement or (ii)
any commercial bank having capital and surplus in excess of $500.0 million and
the commercial paper of the holding company of which is rated at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's (or if at such time neither is issuing ratings, then a comparable rating
of another nationally recognized rating agency), (c) commercial paper rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency) and (d)
investments in money market funds complying with the risk limiting conditions of
Rule 2a-7 or any successor rule of
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the Securities and Exchange Commission under the Investment Company Act of 1940,
as amended.
"Change of Control" means the occurrence of any of the
following events:
(i) prior to the first public offering of Voting Stock
of the Company, either (x) Permitted Holders cease to be the
"beneficial owner" or "beneficial owners" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than
35% of the total voting power of the Voting Stock of the Company, or
(y) Permitted Holders cease to be entitled by voting power, contract or
otherwise to elect or cause the election of directors of the Company
having a majority of the total voting power of the Board of Directors,
in each case, whether as a result of issuance of securities of the
Company, any merger, consolidation, liquidation or dissolution of the
Company, any direct or indirect transfer of securities by any Permitted
Holder or otherwise (for purposes of this clause (i) and clause (ii)
below, Permitted Holders shall be deemed to beneficially own any Voting
Stock of an entity (the "specified entity" held by any other entity
(the "parent entity") so long as the Permitted Holders beneficially own
(as so defined), directly or indirectly, a majority of the Voting Stock
of the parent entity);
(ii) following the first public offering of Voting Stock
of the Company, any "Person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the beneficial owner (as defined in clause (i)
above, except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right to acquire
within one year), directly or indirectly, of more than 35% of the
Voting Stock of the Company, provided that the Permitted Holders
beneficially own (as defined in clause (i) above), directly or
indirectly, in the aggregate a lesser percentage of the Voting Stock of
the Company than such other Person and do not have the right or ability
by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors; or
(iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders
of the Company was approved by a vote of a majority of the directors of
the Company then still in office who were either directors at the
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beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" (i) means GST until the merger of GST with and into
Holdings in connection with the Recapitalization, (ii) thereafter, means
Holdings until the execution of the First Supplemental Indenture by Holdings,
Telex and the Trustee and (iii) thereafter, means Telex and any successor
thereto.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA of the Company and its
Restricted Subsidiaries for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination for which
consolidated financial statements of the Company are available to (ii)
Consolidated Interest Expense for such four fiscal quarters (in each case,
determined, for each fiscal quarter (or portion thereof) of the four fiscal
quarters ending prior to the Issue Date, on a pro forma basis to give effect to
the Recapitalization as if it had occurred at the beginning of such four-quarter
period); provided, however, that:
(1) if the Company or any Restricted Subsidiary (x) has
Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio is
an Incurrence of Indebtedness, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving effect on a pro forma
basis to such Indebtedness as if such Indebtedness had been Incurred on
the first day of such period (except that in making such computation,
the amount of Indebtedness under any revolving credit facility
outstanding on the date of such calculation shall be computed based on
(A) the average daily balance of such Indebtedness during such four
fiscal quarters or such shorter period for which such facility was
outstanding or (B) if such facility was created after the end of such
four fiscal quarters, the average daily balance of such Indebtedness
during the period from the date of creation of such facility to the
date of such calculation) and the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds
of such new Indebtedness as if such discharge had occurred on the first
day of such period, or (y) has repaid, repurchased, defeased or
otherwise discharged any Indebtedness since the
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beginning of the period that is no longer outstanding on such date of
determination, or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio involves a discharge of
Indebtedness (in each case other than Indebtedness Incurred under any
revolving credit facility unless such Indebtedness has been permanently
repaid), EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving effect on a pro forma basis to such
discharge of such Indebtedness, including with the proceeds of such new
Indebtedness, as if such discharge had occurred on the first day of
such period,
(2) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition of any
company or any business or any group of assets constituting an
operating unit of a business, the EBITDA for such period shall be
reduced by an amount equal to the EBITDA (if positive) directly
attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable
to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and is continuing Restricted Subsidiaries in connection with
such Asset Disposition for such period (and, if the Capital Stock of
any Restricted Subsidiary is sold, the Consolidated Interest Expense
for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale),
(3) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Person that thereby becomes a Restricted Subsidiary,
or otherwise acquired any company or any business or any group of
assets constituting an operating unit of a business, including any such
acquisition of assets occurring in connection with a transaction
causing a calculation to be made hereunder, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro
forma effect thereto (including the Incurrence of any Indebtedness) as
if such Investment or acquisition occurred on the first day of such
period, and
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(4) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition or any Investment or
acquisition of assets that would have required an adjustment pursuant
to clause (2) or (3) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving
pro forma effect thereto as if such Asset Disposition, Investment or
acquisition of assets occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is
to be given to an Asset Disposition, Investment or acquisition of assets, or any
transaction governed by the provisions of Article 5, or the amount of income or
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred or repaid, repurchased, defeased or
otherwise discharged in connection therewith, the pro forma calculations in
respect thereof shall be as determined in good faith by a responsible financial
or accounting Officer of the Company, based on reasonable assumptions. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term as at the
date of determination in excess of 12 months). If any Indebtedness bears, at the
option of the Company or a Restricted Subsidiary, a fixed or floating rate of
interest and is being given pro forma effect, the interest expense on such
Indebtedness shall be computed by applying, at the option of the Company or such
Restricted Subsidiary, either a fixed or floating rate. If any Indebtedness
which is being given pro forma effect was Incurred under a revolving credit
facility, the interest expense on such Indebtedness shall be computed based upon
the average daily balance of such Indebtedness during the applicable period.
"Consolidated Interest Expense" means, for any period, the
total consolidated interest expense of the Company and its Restricted
Subsidiaries, the Company and its consolidated Restricted Subsidiaries,
determined in accordance with GAAP, minus, to the extent included in such
interest expense, amortization or write-off of financing costs, and plus, to the
extent incurred by the Company and its Restricted Subsidiaries in such period
but not included in such interest expense, without duplication, (i) interest
expense attributable to Capitalized Lease Obligations and the interest component
of rent expense associated with Attributable Debt in respect of the relevant
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lease giving rise thereto, determined as if such lease were a capitalized lease,
in accordance with GAAP, (ii) amortization of debt discount, (iii) interest in
respect of Indebtedness of any other Person that has been Guaranteed by the
Company or any Restricted Subsidiary, but only to the extent that such interest
is actually paid by the Company or any Restricted Subsidiary, (iv) non-cash
interest expense, (v) net costs associated with Hedging Obligations, (vi) the
product of (A) Preferred Stock dividends in respect of all Preferred Stock of
Domestic Subsidiaries of the Company and Disqualified Stock of the Company held
by Persons other than the Company or a Restricted Subsidiary multiplied by (B) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
the Company, expressed as a decimal, in each case, determined on a consolidated
basis in accordance with GAAP; and (vii) the cash contributions to any employee
stock ownership plan or similar trust to the extent such contributions are used
by such plan or trust to pay interest to any Person (other than the Company or
any Restricted Subsidiary) on Indebtedness Incurred by such plan or trust;
provided, however, that there shall be excluded therefrom any such interest
expense of any Unrestricted Subsidiary to the extent the related Indebtedness is
not Guaranteed or paid by the Company or any Restricted Subsidiary. For purposes
of the foregoing, gross interest expense shall be determined after giving effect
to any net payments made or received by the Company and its Subsidiaries with
respect to Interest Rate Agreements.
"Consolidated Net Income" means, for any period, the
consolidated net income (loss) of the Company and its Restricted Subsidiaries,
determined in accordance with GAAP; provided, however, that there shall not be
included in such Consolidated Net Income:
(i) any net income (loss) of any Person if such Person is not
a Restricted Subsidiary, except that (A) subject to the limitations
contained in clause (iv) below, the Company's equity in the net income
of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and (B)
the Company's equity in the net loss of such Person shall be included
to the extent of the aggregate Investment of the Company or any of its
Restricted Subsidiaries in such Person,
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(ii) any net income (loss) of any Person acquired by the
Company or a Restricted Subsidiary in a pooling of interests
transaction for any period prior to the date of such acquisition,
(iii) any net income (loss) of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company,
except that (A) subject to the limitations contained in clause (iv)
below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash that could have been
distributed by such Restricted Subsidiary during such period to the
Company or another Restricted Subsidiary as a dividend (subject, in the
case of a dividend that could have been made to another Restricted
Subsidiary, to the limitation contained in this clause) and (B) the net
loss of such Restricted Subsidiary shall be included to the extent of
the aggregate Investment of the Company or any of its other Restricted
Subsidiaries in such Restricted Subsidiary,
(iv) any gain or loss realized upon the sale or other
disposition of any asset of the Company or its consolidated Restricted
Subsidiaries (including pursuant to any Sale/Leaseback Transaction)
that is not sold or otherwise disposed of in the ordinary course of
business,
(v) any extraordinary gain or loss, and
(vi) the cumulative effect of a change in accounting
principles.
"Consolidated Tangible Assets" means, as of any date of
determination, the total assets, less goodwill and other intangibles (other than
patents, trademarks, copyrights, licenses and other intellectual property),
shown on the balance sheet of the Company and its Restricted Subsidiaries as of
the most recent date for which such a balance sheet is available, determined on
a consolidated basis in accordance with GAAP.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Company in accordance with
GAAP; provided, however, that "Consolidation" will not include consolidation of
the accounts of any Unrestricted Subsidiary, but the interest of the Company or
any Unrestricted Subsidiary
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will be accounted for as an investment. The term "Consolidated" has a
correlative meaning.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangements (including derivative agreements or arrangements) as to which such
Person is a party or a beneficiary.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default as defined in
Section 6.1.
"Definitive Securities" means Securities that are
substantially in the form of Exhibit A or Exhibit B attached hereto that do not
include the information called for by footnote 1 thereof.
"Depository" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depository with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depository" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness which, at the date of
determination, has an aggregate principal amount to or under which, at the date
of determination, the holders thereof are committed to lend up to, at least
$10.0 million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of the Indenture.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock (other than Management Stock) that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in each
case on or prior to the 91st day after the Stated Maturity of the Securities.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
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"EBITDA" means, for any period, the Consolidated Net Income
for such period, plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) depreciation expense and (iv) amortization of intangibles and
other non-cash charges or non-cash losses.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement dated May 6, 1997, by and between the
Initial Purchasers and the Company, as such agreement may be amended, modified,
or supplemented from time to time in accordance with the terms thereof.
"First Supplemental Indenture" means the First Supplemental
Indenture dated May 6, 1997, among Telex, Holdings (as successor by Merger to
GST) and the Trustee by which Telex will assume all of the obligations of
Holdings (as successor by Merger to GST) under the Indenture and the Securities,
as amended or supplemented from time to time.
"Foreign Subsidiary" means (a) any Restricted Subsidiary of
the Company that is not organized under the laws of the United States of America
or any state thereof or the District of Columbia and (b) any Restricted
Subsidiary of the Company that has no material assets other than securities of
one or more Foreign Subsidiaries, and other assets relating to an ownership
interest in any such securities or Subsidiaries.
"G-II" means Greenwich II, LLC, a Delaware limited liability
company, and any successor in interest thereto.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the Issue Date (for purposes of the
definitions of the terms "Consolidated Coverage Ratio," "Consolidated Interest
Expense," "Consolidated Net Income" and "EBITDA," all defined terms in the
Indenture to the extent used in or relating to any of the foregoing definitions,
and all ratios and computations based on any of the foregoing definitions) and
as in effect from time to time (for all other purposes of the Indenture),
including those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the
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accounting profession all ratios and computations based on GAAP contained in the
Indenture shall be computed in conformity with GAAP.
"Global Security" means a Security that is substantially in
the form of Exhibit A or Exhibit B hereto that includes the information called
for by footnote 1 thereof.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GST" means GST Acquisition Corp., a Delaware corporation, and
any successor thereto.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
nonfinancial obligation of any other Person, including any such obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or such other obligation of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor Senior Indebtedness" means the following
obligations, whether outstanding on the date of the Indenture or thereafter
issued, without duplication: (i) any Guarantee of the Bank Indebtedness by such
Note Guarantor and all other Guarantees by such Note Guarantor of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness for any other Note
Guarantor; and (ii) all obligations consisting of the principal of and premium,
if any, and accrued and unpaid interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Note Guarantor regardless of whether postfiling interest is allowed in such
proceeding) on, and fees and other amount owing in respect of, all other
Indebtedness of the Note Guarantor, unless, in the instrument creating or
evidencing the same or pursuant
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to which the same is outstanding, it is expressly provided that the obligations
in respect of such Indebtedness are not senior in right of payment to the
obligations of such Note Guarantor under the Note Guarantee; provided, however,
that Guarantor Senior Indebtedness shall not include (1) any obligations of such
Note Guarantor to the Note Guarantor or any other Subsidiary of the Note
Guarantor, (2) any liability for Federal, state, local, foreign or other taxes
owed or owing by such Note Guarantor, (3) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness of such Note Guarantor that is expressly subordinate in right
of payment to any of the Indebtedness of such Note Guarantor, including any
Guarantor Senior Subordinated Indebtedness and Guarantor Subordinated
Obligations of such Note Guarantor or (5) any Capital Stock.
"Guarantor Senior Subordinated Indebtedness" means, with
respect to a Note Guarantor, the obligations of such Note Guarantor under the
Note Guarantee and any other Indebtedness of such Note Guarantor that
specifically provides that such Indebtedness is to rank pari passu in right of
payment with the obligations of such Note Guarantor under the Note Guarantee and
is not expressly subordinated by its terms in right of payment to any
Indebtedness of such Note Guarantor which is not Guarantor Senior Indebtedness
of such Note Guarantor.
"Guarantor Subordinated Obligation" means, with respect to a
Note Guarantor, any Indebtedness of such Note Guarantor (whether outstanding on
the Issue Date or thereafter Incurred) which is expressly subordinate in right
of payment to the obligations of such Note Guarantor under its Note Guarantee
pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered in the Register.
"Holdings" means Telex Communications Group, Inc., a Delaware
corporation, and any successor in interest thereto.
"Incur" means issue, assume, enter into any Guarantee of,
incur or otherwise become liable for; provided, however, that any Indebtedness
or Capital Stock of
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a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary. Any Indebtedness issued
at a discount (including Indebtedness on which interest is payable through the
issuance of additional Indebtedness) shall be deemed incurred at the time of
original issuance of the Indebtedness at the initial accreted amount thereof.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed
money,
(ii) the principal of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments,
(iii) all reimbursement obligations of such Person (including
reimbursement obligations) in respect of letters of credit or other
similar instruments (the amount of such obligations being equal at any
time to the aggregate then undrawn and unexpired amount of such letters
of credit or other instruments plus the aggregate amount of drawings
thereunder that have not then been reimbursed),
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables),
which purchase price is due more than one year after the date of
placing such property in final service or taking final delivery and
title thereto or the completion of such services,
(v) all Capitalized Lease Obligations and Attributable Debt of
such Person,
(vi) the redemption, repayment or other repurchase amount of
such Person with respect to any Disqualified Stock or (if such Person
is a Subsidiary of the Company) any Preferred Stock of such Subsidiary,
but excluding, in each case, any accrued dividends (the amount of such
obligation to be equal at any time to the maximum fixed involuntary
redemption, repayment or repurchase price for such Capital Stock, or if
such Capital Stock has no such fixed price, to the involuntary
redemption, repayment or repurchase price therefor calculated in
accordance with the terms thereof as if then redeemed, repaid or
repurchased, and
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if such price is based upon or measured by the fair market value of
such Capital Stock, such fair market value shall be as determined in
good faith by the Board of Directors or the board of directors of the
issuer of such Capital Stock),
(vii) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; provided, however, that the amount of Indebtedness of
such Person shall be the lesser of (A) the fair market value of such
asset at such date of determination and (B) the amount of such
Indebtedness of such other Persons,
(viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person, and
(ix) to the extent not otherwise included in this definition,
net Hedging Obligations of such Person (the amount of any such
obligation to be equal at any time to the termination value of such
agreement or arrangement giving rise to such Hedging Obligation that
would be payable by such Person at such time).
The amount of Indebtedness of any Person at any date shall be
determined as set forth above or otherwise provided in this Indenture, or
otherwise in accordance with GAAP.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Purchasers" means Chase Securities Inc., Xxxxxx
Xxxxxxx & Co. Incorporated and Xxxxx Xxxxxx Inc.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement (including derivative agreements or
arrangements) as to which such Person is party or a beneficiary.
"Investment" in any Person by any other Person means any
direct or indirect advance, loan or other extension of credit (other than to
customers, directors, officers or employees of any Person in the ordinary course
of business) or capital contribution (by means of any transfer of cash or other
property to others or any payment
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24
for property or services for the account or use of others) to, or any purchase
or acquisition of Capital Stock, Indebtedness or other similar instruments
issued by, such Person. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.4, (i) "Investment" shall include the portion
(proportionate to the Company's equity interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of the Company at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if positive) equal to (x) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Investors" means Greenwich Street Capital Partners, L.P.,
Greenwich Street Capital Offshore Fund, Ltd., The Travelers Insurance Company,
The Travelers Life and Annuity Company, TRV Employees Fund, L.P. and the parties
that purchased equity interests in the Company on the date of the
Recapitalization.
"Issue Date" means the date on which the Securities are
originally issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Management Agreements" means, collectively, the Consulting
Agreement, the Fee Agreement and the Indemnification Agreement, each between the
Company and Greenwich Street Capital Partners, Inc. (and its permitted
successors and assigns thereunder), as each may be amended, supplemented, waived
or otherwise modified from time to time in accordance with the terms thereof and
of the Indenture.
"Management Investors" means the officers, directors,
employees and other members of the management of Holdings, the Company or any of
their respective Subsidiaries, or family members or relatives thereof, or trusts
for the benefit of any of the foregoing, or any of their heirs, executors,
successors and legal representatives, who at
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25
any date beneficially own or have the right to acquire, directly or indirectly,
Capital Stock of the Company, Holdings or G-II.
"Management Stock" means Capital Stock of the Company,
Holdings or G-II, or options, warrants or other rights in respect thereof, held
by any of the Management Investors.
"Merger" means the merger of GST with and into Holdings, with
Holdings the surviving corporation on the date of the Recapitalization.
"Moody's" means Xxxxx'x Investors Service, Inc., and its
successors.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other noncash form) therefrom, in each case
net of (i) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (ii) all payments made, and all
installment payments required to be made, on any Indebtedness that is secured by
any assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon such assets, or that must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law, be repaid out
of the proceeds from such Asset Disposition, (iii) all distributions and other
payments required to be made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition, or to any other Person
(other than the Company or a Restricted Subsidiary) owning a beneficial interest
in the assets disposed of in such Asset Disposition and (iv) appropriate amounts
to be provided as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
any securities of the Company or any Subsidiary by the Company or any
Subsidiary, or any capital contribution, means the cash proceeds of such
issuance, sale or contribution net of attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or
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26
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance, sale or contribution and net of taxes paid or
payable as a result thereof.
"Note Guarantee" means any guarantee that may from time to
time be executed and delivered by a Subsidiary of the Company pursuant to
Section 4.12.
"Note Guarantor" means any Subsidiary that has issued a Note
Guarantee.
"Officer" means the President, Chief Financial Officer, any
Vice President, Controller or Treasurer of the Company.
"Officer's Certificate" means a certificate signed by one
Officer.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Permitted Holder" means any of the following: (i) any of the
Investors, Xxxxx Xxxxxx Holdings Inc. and their respective Affiliates; (ii) any
investment fund or vehicle managed, sponsored or advised by Greenwich Street
Capital Partners, Inc., The Travelers Insurance Company, The Travelers Life and
Annuity Company, Xxxxx Xxxxxx Holdings Inc. or any of their respective
Affiliates; (iii) any limited or general partners of, or other investors in, any
of the Investors and their respective Affiliates, or any such investment fund or
vehicle; and (iv) any Person acting in the capacity of an underwriter in
connection with a public or private offering of Capital Stock of the Company,
Holdings or G-II.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Company or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary;
(ii) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary;
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(iii) Temporary Cash Investments or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted
Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;
(v) securities or other Investments received as consideration
in sales or other dispositions of property or assets, including Asset
Dispositions made in compliance with Section 4.6;
(vi) securities or other Investments received in settlement of
debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary, or as a result of foreclosure,
perfection or enforcement of any Lien, or in satisfaction of judgments,
including in connection with any bankruptcy proceeding or other
reorganization of another Person;
(vii) Investments in existence or made pursuant to legally
binding written commitments in existence on the Issue Date;
(viii) Currency Agreements, Interest Rate Agreements and
related Hedging Obligations, which obligations are Incurred in
compliance with Section 4.3;
(ix) pledges or deposits (x) with respect to leases or
utilities provided to third parties in the ordinary course of business
or (y) otherwise described in the definition of "Permitted Liens"; and
(x) other Investments in an aggregate amount outstanding at
any time not to exceed the greater of (A) $7.0 million and (B) 7% of
Consolidated Tangible Assets.
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges
not yet delinquent or the nonpayment of which in the aggregate would
not reasonably be expected to have a material adverse effect on the
Company and its Restricted Subsidiaries, or that are being contested in
good faith and by appropriate
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28
proceedings if adequate reserves with respect thereto are maintained on
the books of the Company or a Subsidiary thereof, as the case may be,
in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations that are not overdue for a
period of more than 60 days, or that are bonded or that are being
contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers'
compensation, unemployment insurance and other social security and
other similar legislation or other insurance related obligations
(including, without limitation, pledges or deposits securing liability
to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of
bids, tenders, trade, government or other contracts (other than for
borrowed money), obligations for utilities, leases, licenses, statutory
obligations, surety, judgment and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business;
(e) easements (including reciprocal easement agreements),
rights-of-way, building, zoning and similar restrictions, utility
agreements, covenants, reservations, restrictions, encroachments,
changes, and other similar encumbrances or title defects incurred, or
leases or subleases granted to others, in the ordinary course of
business, which do not in the aggregate materially interfere with the
ordinary conduct of the business of the Company and its Subsidiaries,
taken as a whole;
(f) Liens existing on, or provided for under written
arrangements existing on, the Issue Date, or (in the case of any such
Liens securing Indebtedness of the Company or any of its Subsidiaries
existing or arising under written arrangements existing on the Issue
Date) securing any Refinancing Indebtedness in respect of such
Indebtedness so long as the Lien securing such Refinancing Indebtedness
is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in
respect thereof) that secured (or under such written arrangements could
secure) the original Indebtedness;
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(g) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by
any developer, landlord or other third party on property over which the
Company or any Restricted Subsidiary of the Company has easement rights
or on any leased property and subordination or similar agreements
relating thereto and (ii) any condemnation or eminent domain
proceedings affecting any real property;
(h) Liens securing Hedging Obligations Incurred in compliance
with Section 4.3;
(i) Liens arising out of judgments, decrees, orders or awards
in respect of which the Company shall in good faith be prosecuting an
appeal or proceedings for review, which appeal or proceedings shall not
have been finally terminated, or if the period within which such appeal
or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to third
parties;
(k) Liens securing (x) Indebtedness Incurred in compliance
with clause (b)(i), (b)(ii), (b)(v) or (b)(vii) of Section 4.3, or
clause (b)(iv) thereof (other than Refinancing Indebtedness Incurred in
respect of Indebtedness described in paragraph (a) thereof) or (y) Bank
Indebtedness;
(l) Liens securing commercial bank indebtedness;
(m) Liens on properties or assets (1) of the Company or any
Note Guarantor securing Senior Indebtedness or Guarantor Senior
Indebtedness, (2) of any Wholly Owned Subsidiary that is not a Note
Guarantor securing Indebtedness of any Wholly Owned Subsidiary that is
not a Note Guarantor or (3) of any Restricted Subsidiary that is not a
Note Guarantor securing its Indebtedness;
(n) Liens existing on property or assets of a Person at the
time such Person becomes a Subsidiary of the Company (or at the time
the Company or a Restricted Subsidiary acquires such property or
assets); provided, however, that such Liens are not created in
connection with, or in contemplation of, such other Person becoming
such a Subsidiary (or such acquisition of such property or assets), and
that such Liens are limited to all or part of the same property or
assets (plus improvements, accessions, proceeds or dividends or
distributions in respect
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thereof) that secured (or, under the written arrangements under which
such Liens arose, could secure) the obligations to which such Liens
relate;
(o) Liens on Capital Stock of an Unrestricted Subsidiary that
secure Indebtedness or other obligations of such Unrestricted
Subsidiary;
(p) any encumbrance or restriction (including, but not limited
to, put and call agreements) with respect to Capital Stock of any joint
venture or similar arrangement pursuant to any joint venture or similar
agreement;
(q) Liens securing the Securities; and
(r) Liens securing Refinancing Indebtedness Incurred in
respect of any Indebtedness secured by, or securing any refinancing,
refunding, extension, renewal or replacement (in whole or in part) of
any other obligation secured by, any other Permitted Liens, provided
that any such new Lien is limited to all or part of the same property
or assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the
obligations to which such Liens relate.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" as applied to the Capital Stock of any
corporation means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security that is due or overdue or is
to become due at the relevant time.
"Public Equity Offering" means an underwritten primary public
offering of common stock of the Company, Holdings or G-II pursuant to an
effective registration
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statement under the Securities Act (whether alone or in conjunction with any
secondary public offering), the proceeds of which, if issued by Holdings or
G-II, are contributed to the Company.
"Public Market" means any time after a Public Equity Offering
has been consummated and either (x) at least 10% of the total issued and
outstanding common stock (or equivalent equity interests) of the Company,
Holdings or G-II has been distributed by means of an effective registration
statement under the Securities Act or (y) an established public trading market
otherwise exists for any such common stock or equivalent equity interests.
"Purchase Agreement" means the Agreement, dated April 29,
1997, among GST, Telex and the Initial Purchasers, providing for the purchase by
the Initial Purchasers of $125.0 million principal amount of the Company's
10 1/2% Senior Subordinated Notes due 2007.
"Recapitalization" means the recapitalization of Holdings
pursuant to the Recapitalization Agreement and Plan of Merger, dated as of March
4, 1997, among GST, G-II and Holdings, whereby GST will be merged with and into
Holdings, with Holdings being the surviving corporation.
"Redemption Date" means the date on which the Securities are
optionally redeemed pursuant to Section 3.7.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances," "refinanced" and
"refinancing" as used in the Indenture shall have a correlative meaning) any
Indebtedness existing on the date of the Indenture or Incurred in compliance
with the Indenture (including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary (to the extent permitted in the
Indenture) and Indebtedness of any Restricted Subsidiary that refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
refinances Refinancing Indebtedness; provided, however, that (i) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being refinanced, (ii) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being refinanced and (iii)
such Refinancing Indebtedness is Incurred in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue
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price) that is equal to or less than the sum of (x) the aggregate principal
amount (or if issued with original issue discount, the aggregate accreted value)
then outstanding of the Indebtedness being refinanced, plus (y) fees,
underwriting discounts, premiums and other costs and expenses incurred in
connection with such Refinancing Indebtedness; provided further, however, that
Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted
Subsidiary that is not a Note Guarantor that refinances Indebtedness of the
Company or (y) Indebtedness of the Company or a Restricted Subsidiary that
refinances Indebtedness of an Unrestricted Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth
in the Exchange and Registration Rights Agreement.
"Related Business" means those businesses in which the Company
or any of its Subsidiaries is engaged on the date of the Indenture, or that are
reasonably related, complementary or incidental thereto.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Restricted Securities Legend" means the legend set forth in
Section 2.6(g) hereof.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit
facility under the Senior Credit Facility (which may include any swing line or
letter of credit facility or subfacility thereunder).
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or such Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases (x) between the Company and a Restricted
Subsidiary or between or (y) required to be classified and accounted for as
capitalized leases for financial reporting purposes in accordance with GAAP.
"SEC" means the Securities and Exchange Commission.
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"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by the Depository), or any successor entity
thereto and shall initially be the Trustee.
"Senior Credit Agreement" means the credit agreement dated as
of May 6 , 1997, among the Company (after giving effect to the Merger and the
Assumption), the banks and other financial institutions party thereto from time
to time, Xxxxxx Xxxxxxx Senior Funding, Inc., as documentation agent, and The
Chase Manhattan Bank, as administrative agent, as such agreement may be assumed
by any successor in interest, and as such agreement may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the original agent and
lenders or other agents and lenders or otherwise, and whether provided under the
original Senior Credit Agreement or otherwise).
"Senior Credit Facility" means the collective reference to the
Senior Credit Agreement, any Loan Documents (as defined therein), any notes and
letters of credit issued pursuant thereto and any guarantee and collateral
agreement, patent and trademark security agreement, mortgages, letter of credit
applications and other security agreements and collateral documents, and other
instruments and documents, executed and delivered pursuant to or in connection
with any of the foregoing, in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the original agent and
lenders or other agents and lenders or otherwise, and whether provided under the
original Senior Credit Agreement or otherwise). Without limiting the generality
of the foregoing, the term "Senior Credit Facility" shall include any agreement
(i) changing the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder or (iv) otherwise
altering the terms and conditions thereof.
"Senior Indebtedness" means the following obligations, whether
outstanding on the date of the Indenture or thereafter issued, without
duplication: (i) all obligations consisting of Bank Indebtedness; and (ii) all
obligations consisting of the
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principal of and premium, if any, and accrued and unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company regardless of whether post-filing
interest is allowed in such proceeding) on, and fees and other amounts owing in
respect of, all other Indebtedness of the Company, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that the obligations in respect of such Indebtedness are
not senior in right of payment to the Notes; provided, however, that Senior
Indebtedness shall not include (1) any obligation of the Company to any
Subsidiary, (2) any liability for Federal, state, foreign, local or other taxes
owed or owing by the Company, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of the
Company (or Guarantee by the Company of any Indebtedness) that is expressly
subordinate in right of payment to any other Indebtedness of the Company (or
Guarantee by the Company of any Indebtedness) or (5) any Capital Stock. If any
Designated Senior Indebtedness is disallowed, avoided or subordinated pursuant
to the provisions of Section 548 of Title 11 of the United States Code or any
applicable state fraudulent conveyance law, such Designated Senior Indebtedness
nevertheless will constitute Senior Indebtedness.
"Senior Subordinated Indebtedness" means the Securities and
any other Indebtedness of the Company that (i) specifically provides that such
Indebtedness is to rank pari passu with the Securities or is otherwise entitled
"Senior Subordinated" Indebtedness and (ii) is not expressly subordinated by its
terms in right of payment to any Indebtedness of the Company that is not Senior
Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC, as in effect on the Issue
Date.
"S&P" means Standard & Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
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"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the date of the Indenture or thereafter
Incurred) which is expressly subordinate in right of payment to the Securities
pursuant to a written agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other equity interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such person
or (ii) one or more Subsidiaries of such Person.
"Tax Sharing Agreement" means the Tax Sharing Agreement
between the Company and Holdings, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the terms
thereof and of the Indenture.
"Telex" means Telex Communications, Inc., a Delaware
corporation which upon the Assumption will become the primary obligor of the
Securities.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations (x) of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof or (y) of any foreign country recognized by the United States of
America rated at least "A" by S&P or "A-1" by Moody's, (ii) investments in time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company that is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital and surplus aggregating in excess of $250.0 million (or the
foreign currency equivalent thereof) and whose long-term debt is rated "A" by
S&P or "A-1" by Moody's, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i) or
(ii) above entered into with a bank meeting the qualifications described in
clause (ii) above, (iv) Investments in commercial paper, maturing not more than
270 days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by 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,
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(v) Investments in securities with maturities of six months or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or "A" by Moody's, (vi)
any money market deposit accounts issued or offered by a domestic commercial
bank or a commercial bank organized and located in a country recognized by the
United States of America, in each case, having capital and surplus in excess of
$250.0 million (or the foreign currency equivalent thereof), or investments in
money market funds complying with the risk limiting conditions of Rule 2a-7 or
any short-term successor rule) of the SEC, under the Investment Company Act of
1940, as amended, and (vii) similar short-term investments approved by the Board
of Directors in the ordinary course of business.
"Term Loan Facility" means the term loan facilities provided
under the Senior Credit Facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Transactions" means, collectively, the Recapitalization, the
Merger, the Assumption, the initial equity investment by the Investors, the
offering of the Initial Securities, the initial borrowings under the Senior
Credit Facility, and all other transactions relating to the Recapitalization or
the financing thereof.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.6(g) hereof.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two Business Days prior
to the Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the Redemption Date to the Stated Maturity; provided, however, that
if the period from the Redemption Date to the Stated Maturity is
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not equal to the constant maturity of a United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the period from the Redemption Date to the Stated
Maturity is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such in the Indenture until
a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Uniform Commercial Code" means the Uniform Commercial Code as
in effect from time to time in any relevant jurisdiction.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (B) if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.4. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (x) the Company could incur
at least $1.00 of additional Indebtedness under Section 4.3(a) and (y) no
Default shall have occurred and be continuing. Any such designation by the Board
of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Company's Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
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"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of an entity means all classes of Capital Stock
of such entity then outstanding and normally entitled to vote in the election of
directors or all interests in such entity with the ability to control the
management or actions of such entity.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares,
or (in the case of any Foreign Subsidiary) to the extent required by applicable
law) is owned by the Company or another Wholly Owned Subsidiary.
SECTION B. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" .............................................. 4.7
"Bankruptcy Law" ..................................................... 6.1
"Blockage Notice" .................................................... 10.3
"covenant defeasance option" ......................................... 8.1(b)
"Custodian" .......................................................... 6.1
"Event of Default" ................................................... 6.1
"Excess Proceeds" .................................................... 4.6
"Fairness Opinion" ................................................... 4.7
"legal defeasance option" ............................................ 8.1(b)
"Legal Holiday" ...................................................... 11.8
"Offer" .............................................................. 4.6
"Offer Period" ....................................................... 4.6
"pay the Securities" ................................................. 10.3
"Paying Agent" ....................................................... 2.3
"Payment Blockage Period" ............................................ 10.3
"Register"............................................................ 2.3
"Registrar"........................................................... 2.3
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"Restricted Payment" ................................................. 4.4
"Securities Act" ..................................................... 2.1
"Successor Company" .................................................. 5.1
SECTION C. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION D. Rules of Construction. 1. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) as used herein, accounting terms relating to the Company
and its Subsidiaries not defined in Section 1.1, and accounting terms
partly defined in Section 1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP. All computations
determining compliance with financial covenants or terms, including
definitions used therein, shall be prepared in accordance with
generally accepted accounting principles in effect at the Issue Date,
as and to the extent provided in the definition of the term "GAAP." If
at any
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time the computations for determining compliance with such financial
covenants or provisions relating thereto utilize generally accepted
accounting principles different than those in effect at the Issue Date,
the financial statements within which such computations are delivered
shall be accompanied by a reconciliation statement with respect to such
computations;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
2. Unsecured Indebtedness is not deemed to be subordinate or
junior to Secured Indebtedness merely because it is unsecured, and Indebtedness
that is not guaranteed by a particular Person is not deemed to be subordinate or
junior to Indebtedness that is so guaranteed merely because it is not so
guaranteed.
ARTICLE II.
The Securities
SECTION A. Form and Dating. The Initial Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. Any Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B, which is
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in Exhibit A and B are part of the terms of this Indenture.
1. Global Securities. The Initial Securities are being offered
and sold by the Company pursuant to the Purchase Agreement.
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Initial Securities offered and sold to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")) ("QIBs") in accordance with Rule 144A under
the Securities Act ("Rule 144A") as provided in the Purchase Agreement, shall be
issued initially in the form of a single, permanent Global Security in
definitive, fully registered form without interest coupons with the legend
called for by footnote 1 to Exhibit A hereto (the "Restricted Global Security"),
which shall be deposited on behalf of the Initial Purchasers of the Initial
Securities represented thereby with the Trustee, as Securities Custodian for the
Depository, and registered in the name of Cede & Co., as nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Restricted Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as Securities Custodian, and the Depository or its
nominee as hereinafter provided.
2. Book-Entry Provisions. This Section 2.1(b) shall apply only
to Global Securities deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (ii)
shall be held by the Trustee as custodian for the Depository. After the issuance
of Exchange Securities under a Registered Exchange Offer, the Trustee shall have
no duty to hold any Global Security as custodian for the Depository or any other
Security registered in the name of the Depository or a nominee of the
Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such Global Security, and the Depository
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
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3. Certificated Securities. Except as otherwise provided
herein, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities. Purchasers of Initial
Securities who are not QIBs (referred to herein as the "Non-Global Purchasers")
will receive certificated Initial Securities bearing the Restricted Securities
Legend ("Restricted Certificated Securities"); provided, however, that upon
transfer of such Restricted Certificated Securities to a QIB, such Restricted
Certificated Securities will, unless the relevant Global Security has previously
been exchanged, be exchanged for an interest in a Global Security pursuant to
the provisions of Section 2.6 hereof. Certificated Securities will include the
Restricted Securities Legend unless removed in accordance with this Section
2.1(c) or Section 2.6(g) hereof.
After a transfer of any Initial Securities during the period
of the effectiveness of, and pursuant to, a Shelf Registration Statement with
respect to the Initial Securities, all requirements pertaining to legends on
such Initial Securities will cease to apply, the requirements requiring that any
such Initial Securities issued to certain Holders be issued in global form will
cease to apply, and certificated Initial Securities without legends will be made
available to the Holders of such Initial Securities. Upon the consummation of a
Registered Exchange Offer with respect to the Initial Securities pursuant to
which Holders of Initial Securities are offered Exchange Securities in exchange
for their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued in global
form will cease to apply and certificated Initial Securities with the Restricted
Securities Legend will be available to Holders of such Initial Securities that
do not exchange their Initial Securities, and Exchange Securities in
certificated form will be available to Holders that exchange such Initial
Securities in such Registered Exchange Offer.
SECTION B. Execution and Authentication. One Officer shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
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The Trustee shall authenticate and make available for delivery
(1) Initial Securities for original issue in an aggregate principal amount of
$125.0 million, and (2) Exchange Securities for issue only in a Registered
Exchange Offer, pursuant to the Exchange and Registration Rights Agreement, for
Initial Securities for a like principal amount of Initial Securities exchanged
pursuant thereto, in each case upon a written order of the Company signed by one
Officer. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities or
Exchange Securities. The aggregate principal amount of Securities outstanding at
any time may not exceed $125.0 million except as provided in Section 2.7.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate the Securities. Any such appointment shall be
evidenced by an instrument in writing signed by a Trust Officer, a copy of which
instrument shall be promptly furnished to the Company. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
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 Registrar, Paying Agent or agent
for service of notices and demands.
SECTION C. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange (the
"Register"). The ownership of Securities shall be proved by such Register. The
Company may have one or more co registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its Wholly Owned Subsidiaries that is a Domestic Subsidiary
may act as Paying Agent, Registrar, co-registrar or transfer agent.
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The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company to
act as Depository with respect to the Global Securities.
SECTION D. Paying Agent To Hold Money in Trust. On or prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall, on or
immediately prior to each due date of the principal and interest on any
Security, segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed by
the Paying Agent. Upon complying with this Section, the Paying Agent shall have
no further liability for the money delivered to the Trustee.
Any money deposited with the Trustee or any Paying Agent in
trust for the payment of principal and interest on any Security and remaining
unclaimed for two years after such principal and interest has become due and
payable shall be paid to the Company at its request; and the Holder of such
Security shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease.
SECTION E. Securityholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of principal or interest on
any Security and remaining unclaimed for two years after such principal and
interest has become due and
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payable shall be paid to the Company at its request, or, if then held by the
Company, shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION F. Transfer and Exchange. 1. Transfer and Exchange of
Definitive Securities. When Definitive Securities are presented to the Registrar
or a co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(a) shall be duly endorsed or accompanied by a written
instrument of transfer in form and substance reasonably satisfactory to
the Company and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(b) in the case of Transfer Restricted Securities that
are Definitive Securities, are being transferred or exchanged pursuant
to an effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Securities are
being delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such Transfer Restricted Securities are
being transferred to the Company or to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the
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Securities Act, a certification to that effect (in
substantially the form set forth on the reverse of the
Security); or
(C) if such Transfer Restricted Securities are
being transferred (w) pursuant to an exemption from
registration in accordance with Rule 144 or Regulation S under
the Securities Act; or (x) to an institutional "accredited
investor" within the meaning of Rules 501(a)(1), (2), (3) or
(7) under the Securities Act that is acquiring the security
for its own account, or for the account of such an
institutional accredited investor, with respect to which it
exercises sole discretion, in each case in a minimum principal
amount of the Securities of $250,000 for investment purposes
and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act; or
(y) in reliance on another exemption from the registration
requirements of the Securities Act: (i) a certification to
that effect (in substantially the form set forth on the
reverse of the Security), (ii) if the Company or Registrar so
requests, an Opinion of Counsel reasonably acceptable to the
Company and to the Registrar to the effect that such transfer
is in compliance with the Securities Act and (iii) in the case
of clause (x), a signed letter substantially in the form of
Exhibit C hereto.
2. Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form and substance satisfactory to the Trustee and the Company,
together with:
(a) if such Definitive Security is a Transfer Restricted
Security, certification, substantially in the form set forth on the
reverse of the Security, that such Definitive Security is being
transferred to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule 144A under the
Securities Act; and
(b) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing the Trustee to
make, or to direct the Securities Custodian to make, an adjustment on
its books and records with respect
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to such Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officer's Certificate, a new Global Security in
the appropriate principal amount.
3. Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor.
4. Transfer of a Beneficial Interest in a Global Security for
a Definitive Security.
(a) Any person having a beneficial interest in a Global
Security that is being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or pursuant
to clause (A),(B) or (C) below may upon request, and if accompanied by
the information specified below, exchange such beneficial interest for
a Definitive Security of the same aggregate principal amount. Upon
receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depository from the Depository or
its nominee on behalf of any Person having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or
such other form of instructions as is customary for the Depository or
the Person designated by the Depository as having such a beneficial
interest in a Transfer Restricted Security only, the following
additional information and documents:
(A) if such beneficial interest is being transferred
to the Person designated by the Depository as being the owner
of a beneficial interest in a Global Security, a certification
from such Person to that effect (in substantially the form set
forth on the reverse of the Security); or
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(B) if such beneficial interest is being transferred
to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with Rule 144A under
the Securities Act, a certification to that effect (in
substantially the form set forth on the reverse of the
Security); or
(C) if such beneficial interest is being transferred
(w) pursuant to an exemption from registration in accordance
with Rule 144 or Regulation S under the Securities Act; or (x)
to an institutional "accredited investor" within the meaning
of Rules 501(a)(1), (2), (3) and (7) under the Securities Act
that is acquiring the security for its own account, or for the
account of such an institutional accredited investor, with
respect to which it exercises sole discretion, in each case in
a minimum principal amount of the Securities of $250,000 for
investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of the
Securities; or (y) in reliance on another exemption from the
registration requirements of the Securities Act: (i) a
certification to that effect from the transferee or transferor
(in substantially the form set forth on the reverse of the
Security), (ii) if the Company or Registrar so requests, an
Opinion of Counsel from the transferee or transferor
reasonably acceptable to the Company and to the Registrar to
the effect that such transfer is in compliance with the
Securities Act, and (iii) in the case of clause (x), a signed
letter substantially in the form of Exhibit C hereto,
then the Trustee or the Securities Custodian, at the direction of the
Trustee, will cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities
Custodian, the aggregate principal amount of the Global Security to be
reduced on its books and records and, following such reduction, the
Company will execute and the Trustee will authenticate and make
available for delivery to the transferee a Definitive Security.
(b) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Definitive Securities available for delivery to the
persons in whose names such Securities are so registered in accordance
with the instructions of the Depository.
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5. Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Security
may not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
6. Authentication of Definitive Securities in Absence of
Depository. If at any time:
(a) the Depository for the Securities notifies the Company
that the Depository is unwilling or unable to continue as Depository
for the Global Securities and a successor Depository for the Global
Securities is not appointed by the Company within 90 days after
delivery of such notice; or
(b) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive
Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officer's
Certificate requesting the authentication and delivery of Definitive Securities
to the Persons designated by the Company, will authenticate and make available
for delivery Definitive Securities, in an aggregate principal amount equal to
the principal amount of Global Securities, in exchange for such Global
Securities.
7. Legend.
(a) Except as permitted by the following paragraph (ii),
each Security certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor
or substitution thereof) shall bear a legend in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE
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ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR
WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, IN
A TRANSACTION COMPLYING WITH THE REQUIREMENTS OF RULE 144A, TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULES 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF
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THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY OF THE
FOREGOING CLAUSES (A)-(F), A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
(b) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Security that does not bear the legend set
forth above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) any such Transfer Restricted Security represented
by a Global Security shall not be subject to the provisions
set forth in clause (i) of this Section 2.6(g) (such sales or
transfers being subject only to the provisions of Section
2.6(c) hereof); provided, however, that with respect to any
request for an exchange of a Transfer Restricted Security that
is represented by a Global Security for a Definitive Security
that does not bear a legend, which request is made in reliance
upon Rule 144, the Holder thereof shall certify in writing to
the Registrar that such request is being made pursuant to Rule
144 (such certification to be substantially in the form set
forth on the reverse of the Security).
8. Cancellation and/or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, redeemed, repurchased or canceled, such Global
Security shall be returned to
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the Depository for cancellation or retained and canceled by the Trustee. At any
time prior to such cancellation, if any beneficial interest in a Global Security
is exchanged for Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Securities Custodian for such Global Security) or the
Securities Custodian with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
9. Obligations with Respect to Transfers and Exchanges of
Securities.
(a) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(b) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith.
(c) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security
selected for redemption in whole or in part pursuant to Article 3,
except the unredeemed portion of any Definitive Security being redeemed
in part, or (b) any Security for a period beginning 15 Business Days
before the mailing of a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an interest payment date.
(d) Prior to the due presentation for registration of
transfer of any Security, each of the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar may deem and treat the person
in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar and any co-registrar shall be
affected by notice to the contrary.
(e) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the
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same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
10. No Obligation of the Trustee. (a) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall be
given or made only to or upon the order of the registered Holders (which shall
be the Depository or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security in global form shall be exercised
only through the Depository subject to the applicable rules and procedures of
the Depository. The Trustee may conclusively rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
members, participants and any beneficial owners.
(b) 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 Security (including, without limitation, any
transfers between or among Depository participants, members or beneficial owners
in any Global Security) 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 G. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Article 8 of the Uniform Commercial Code and any other applicable law are met,
and if the Holder (i) satisfies the Company and the Trustee, within a reasonable
time after such Holder has notice thereof, with respect to such loss,
destruction or wrongful taking and the Registrar does not register a transfer
prior to receiving such notification, (ii) so requests the Company or the
Trustee prior to the Security being acquired by a bona fide purchaser and (iii)
satisfies any
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other reasonable requirements of the Company and the Trustee. Such Holder shall
furnish an indemnity bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and
any co-registrar from any loss that any of them may suffer if a Security is
replaced. The Company and the Trustee may charge the Holder for their expenses
in replacing a Security (including amounts necessary to pay taxes or other
governmental charges associated with such replacement).
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.7 shall (to the extent
lawful) be exclusive and preclude all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION H. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION I. Temporary Securities. Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall
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prepare and the Trustee shall authenticate definitive Securities and make them
available for delivery in exchange for temporary Securities.
SECTION J. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
deliver canceled Securities to the Company. The Company may not issue new
Securities to replace Securities it has delivered to the Trustee for
cancellation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION K. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION L. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
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ARTICLE III.
Redemption
SECTION A. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officer's
Certificate from the Company to the effect that such redemption will comply with
the conditions herein. If fewer than all the Securities are to be redeemed, the
record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date shall be not less than 15 days after the
date of notice to the Trustee. Any such notice may be canceled at any time prior
to notice of such redemption being mailed to any Holder and shall thereby be
void and of no effect.
SECTION B. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed on a pro rata basis, by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee considers, in its sole discretion, fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them the Trustee selects shall be
in amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
in writing of the Securities or portions of Securities to be redeemed.
SECTION C. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
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(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed;
(8) the CUSIP number, if any, printed on the Securities being
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION D. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest, if any, to the redemption
date; provided that if the redemption date is after a regular record date and on
or prior to the interest payment date, the accrued interest shall be payable to
the Securityholder of the redeemed Securities registered on the relevant
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record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION E. Deposit of Redemption Price. On or prior to 10:00
a.m. on the redemption date, the Company shall deposit with the Paying Agent
(or, if the Company or a Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which have been delivered by the
Company to the Trustee for cancellation, and from and after such date (unless
the Company defaults in making such redemption payment) interest on such
Securities shall cease to accrue.
SECTION F. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION G. Optional Redemption. 1. Except as set forth in this
Section 3.7, the Securities may not be redeemed pursuant to this Section 3.7(a)
at the option of the Company prior to May 1, 2002. On and after that date, the
Company may redeem the Securities in whole at any time or in part from time to
time at the following redemption prices (expressed in percentages of principal
amount), plus accrued interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the related interest payment date) if redeemed during the 12-month period
beginning on or after May 1 of the years set forth below:
Redemption
Period Price
------ ----------
......................................................... 2002
......................................................... 105.250%
......................................................... 2003
......................................................... 103.500%
......................................................... 2004
......................................................... 101.750%
......................................................... 2005 and thereafter
......................................................... 100.000%
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2. Notwithstanding the foregoing, at any time and from time to
time prior to May 1, 2000, the Company may redeem in the aggregate up to 33 1/3%
of the original aggregate principal amount of the Securities with the proceeds
of one or more Public Equity Offerings by the Company following which there is a
Public Market, at a redemption price (expressed as a percentage of principal
amount) of 110.5% plus accrued interest, if any, to the redemption date (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided, however, that at
least 66 2/3% of the original aggregate principal amount of the Securities must
remain outstanding after each such redemption.
3. At any time on or prior to May 1, 2002, the Securities may
be redeemed as a whole at the option of the Company upon the occurrence of a
Change of Control, upon not less than 30 nor more than 60 days' prior notice
(but in no event more than 180 days after the occurrence of such Change of
Control) mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
ARTICLE IV.
Covenants
SECTION A. Payment of Securities. The Company shall promptly
pay the principal of and interest on the Securities on the dates and in the
manner provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION B. SEC Reports. Notwithstanding that the Company may
not be required to be or remain subject to the reporting requirements of Section
13 or 15(d) of
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the Exchange Act, the Company will file (if then permitted to do so) with the
SEC and provide (whether or not so filed with the SEC) the Trustee and
Securityholders and prospective Securityholders (upon request) with the annual
reports and the information, documents and other reports, which are specified in
Sections 13 and 15(d) of the Exchange Act. The Company also will comply with the
other provisions of TIA Section 314(a).
SECTION C. Limitation on Indebtedness. 1. The Company will
not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness;
provided, however, that the Company and the Note Guarantors may Incur
Indebtedness if on the date of the Incurrence of such Indebtedness the
Consolidated Coverage Ratio would be greater than (i) 2.00:1.00, if such
Indebtedness is Incurred on or prior to the second anniversary of the Issue
Date, and (ii) 2.25:1.00 if such Indebtedness is Incurred thereafter.
2. Notwithstanding Section 4.3(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(a) Indebtedness Incurred pursuant to the Senior Credit
Facility in a maximum principal amount not to exceed at any time (A) an
aggregate principal amount of $115.0 million under the Term Loan
Facility less the aggregate amount of all scheduled repayments of
principal, or mandatory prepayments of principal with Net Available
Cash from Asset Dispositions, applied to permanently reduce the
Indebtedness outstanding under the Term Loan Facility, plus (in the
case of any refinancing thereof) the aggregate amount of fees,
underwriting discounts, premiums and other costs and expenses incurred
in connection with such refinancing, and (B) an aggregate principal
amount outstanding at any time under the Revolving Credit Facility not
to exceed the greater of (x) $25.0 million less the amount of all
mandatory prepayments of principal with Net Available Cash from Asset
Dispositions, applied to permanently reduce the commitments under the
Revolving Credit Facility plus (in the case of any refinancing thereof)
the aggregate amount of fees, underwriting discounts, premiums and
other costs and expenses incurred in connection with such refinancing,
and (y) the Borrowing Base;
(b) (ii) Indebtedness of Foreign Subsidiaries for working
capital purposes and any Guarantees in respect thereof, the aggregate
principal amount of which Indebtedness outstanding at any time does not
exceed, as to all such Foreign Subsidiaries, the greater of (the
"Foreign Subsidiary Amount") (A) $10.0 million and (B) an amount equal
to 10% of Consolidated Tangible Assets;
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provided, however, that the principal amount of such Indebtedness may
exceed the Foreign Subsidiary Amount by an amount not to exceed the
amount of Indebtedness permitted to be Incurred by clause 4.3(b)(i)(B)
as of such date but the principal amount of Indebtedness permitted to
be Incurred by clause 4.3(b)(i)(B) above shall be reduced by the amount
by which such Indebtedness exceeds the Foreign Subsidiary Amount;
(c) Indebtedness (A) of the Company to any Restricted
Subsidiary and (B) of any Wholly Owned Subsidiary to the Company or any
Restricted Subsidiary; provided, however, that any subsequent issuance
or transfer of any Capital Stock or any other event that results in any
such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or
any other subsequent transfer of any such Indebtedness (except to the
Company or a Wholly Owned Subsidiary) will be deemed, in each case, an
Incurrence of Indebtedness by the Company or such Restricted
Subsidiary, as the case may be;
(d) Indebtedness represented by the Securities, any
Indebtedness (other than the Indebtedness described in clause
4.3(b)(i), (ii) or (iii) above) outstanding on the date of the
Indenture and any Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause 4.3(b)(iv) or Section 4.3(a)
above;
(e) Indebtedness of the Company or any Restricted Subsidiary
to finance or refinance the deferred purchase price of newly acquired
property of the Company and its Subsidiaries used in the ordinary
course of business of the Company and its Subsidiaries (provided such
purchase money financing is entered into within six months of the
acquisition of such property), and any Refinancing Indebtedness with
respect thereto, in an amount (based on the remaining balance of the
obligations therefor on the books of the Company and its Restricted
Subsidiaries) which shall not exceed the greater of (A) $7.0 million
and (B) an amount equal to 7% of Consolidated Tangible Assets in the
aggregate at any one time outstanding;
(f) Indebtedness of the Company or any Restricted Subsidiary
(which may comprise Bank Indebtedness) in an aggregate principal amount
at any one time outstanding not in excess of the greater of (A) $7.0
million and (B) an amount equal to 7% of Consolidated Tangible Assets;
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(g) Indebtedness of the Company or any Restricted Subsidiary
in the form of Capitalized Lease Obligations or Attributable Debt, and
any Refinancing Indebtedness with respect thereto, in an aggregate
amount not in excess of the greater of (A) $7.0 million and (B) an
amount equal to 7% of Consolidated Tangible Assets at any one time
outstanding; provided, however, that all Indebtedness Incurred by one
or more Restricted Subsidiaries that are not Note Guarantors pursuant
to clause 4.3(b)(v) or (vi) above or this clause 4.3(b)(vii) shall not
exceed the greater of (A) $7.0 million and (B) an amount equal to 7% of
Consolidated Tangible Assets in aggregate principal amount at any one
time outstanding;
(h) Indebtedness represented by the Note Guarantees and
Guarantees of Indebtedness Incurred pursuant to clause 4.3(b)(i) or
(iii) above;
(i) Guarantees (A) by any Note Guarantor of Senior
Indebtedness, (B) by the Company or any Note Guarantor of Guarantor
Senior Indebtedness or (C) by any Wholly Owned Subsidiary that is not a
Note Guarantor of Indebtedness of any Wholly Owned Subsidiary that is
not a Note Guarantor;
(j) Indebtedness (A) arising by reason of any Lien created or
permitted to exist by Section 4.11, including any Indebtedness of any
Note Guarantor arising by reason of any Lien granted by such Person to
secure Senior Indebtedness, or of the Company or any Note Guarantor
arising by reason of any Lien granted by such Person to secure
Guarantor Senior Indebtedness, or (B) of any Restricted Subsidiary that
is not a Note Guarantor arising by reason of any Lien granted by such
Person to secure Indebtedness of any Restricted Subsidiary that is not
a Note Guarantor;
(k) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring of a check, draft or similar instrument of
such Person drawn against insufficient funds, provided that such
Indebtedness is extinguished within five Business Days of its
incurrence;
(l) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities, or obligations in respect of
purchase price adjustments, in connection with the acquisition or
disposition of assets, including pursuant to the Recapitalization;
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(m) Indebtedness in respect of (A) commercial letters of
credit, or other letters of credit or other similar instruments or
obligations, issued in connection with liabilities incurred in the
ordinary course of business (including those issued to governmental
entities in connection with self-insurance under applicable workers'
compensation statutes), or (B) surety, judgment, appeal, performance
and other similar bonds, instruments or obligations provided in the
ordinary course of business;
(n) Indebtedness under Hedging Obligations; provided, however,
that such Hedging Obligations are entered into for bona fide hedging
purposes of the Company or any Restricted Subsidiary and are in the
ordinary course of business;
(o) Indebtedness (A) of the Company consisting of Guarantees
of up to an aggregate principal amount of $4.0 million of borrowings by
Management Investors in connection with the purchase of Capital Stock
of the Company, Holdings or G-II by such Management Investors or (B) of
the Company or any Restricted Subsidiary consisting of guarantees in
respect of loans or advances made to officers or employees of Holdings,
the Company or any Restricted Subsidiary, or guarantees otherwise made
on their behalf, (1) in respect of travel, entertainment and
moving-related expenses incurred in the ordinary course of business, or
(2) in the ordinary course of business not exceeding $500,000 in the
aggregate outstanding at any time;
(p) Indebtedness of any Restricted Subsidiary that is
Indebtedness of another Person assumed by such Restricted Subsidiary in
connection with its acquisition of assets from such Person (other than
Indebtedness Incurred in connection with, or in contemplation of, such
acquisition) and any Refinancing Indebtedness with respect thereto;
provided, however, that at the time of such acquisition of assets the
Company shall have been able to Incur at least an additional $1.00 of
Indebtedness under Section 4.3(a) above after giving effect to such
acquisition; and
(q) Indebtedness of a Restricted Subsidiary issued and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred (A) as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company or
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(B) otherwise in connection with, or in contemplation of, such
acquisition) and any Refinancing Indebtedness with respect thereto;
provided, however, that on the date of any such acquisition the Company
shall have been able to Incur at least $1.00 of Indebtedness under
Section 4.3(a) above after giving effect to such acquisition.
3. Notwithstanding the foregoing, the Company will not Incur
any Indebtedness pursuant to any provision of Section 4.3(b) above that permits
Refinancing Indebtedness in respect of Indebtedness constituting Subordinated
Obligations, if the proceeds of such Refinancing Indebtedness are used, directly
or indirectly, to refinance such Subordinated Obligations, unless such
Refinancing Indebtedness will be subordinated to the Securities to at least the
same extent as such Subordinated Obligations.
4. For purposes of determining compliance with, and the
outstanding principal amount of any particular Indebtedness Incurred pursuant to
and in compliance with, this covenant, (i) any other obligation of the obligor
on such Indebtedness arising under any Guarantee, Lien or letter of credit
supporting such Indebtedness shall be disregarded to the extent that such
Guarantee, Lien or letter of credit secures the principal amount of such
Indebtedness; (ii) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in any clause of Section 4.3(b)
above, the Company, in its sole discretion, shall classify such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses; and (iii) the amount of Indebtedness issued
at a price that is less than the principal amount thereof shall be equal to the
amount of the liability in respect thereof determined in accordance with GAAP.
5. For purposes of determining compliance with any
Dollar-denominated restriction on the Incurrence of Indebtedness denominated in
a foreign currency, the Dollar-equivalent principal amount of such Indebtedness
Incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was Incurred, in the
case of term debt, or first committed, in the case of revolving credit debt,
provided that (x) the Dollar-equivalent principal amount of any such
Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date and (y) if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such Dollar-
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denominated restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being refinanced. The principal amount of any
Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
SECTION D. Limitation on Restricted Payments. 1. The Company
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) except (x) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (y) dividends or distributions payable to the Company or any
Restricted Subsidiary (and, if the Restricted Subsidiary making such dividend or
distribution is not a Wholly Owned Subsidiary, to its other shareholders on no
more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Company held by Persons
other than the Company or another Restricted Subsidiary, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Obligations (other than the purchase, repurchase, redemption or
other acquisition of Subordinated Obligations in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) make any Investment
(other than a Permitted Investment) in any Person (any such dividend,
distribution, purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment being herein referred to as a "Restricted Payment") if
at the time the Company or such Restricted Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not incur at least an additional $1.00
of Indebtedness under Section 4.3(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Company's Board of
Directors whose
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determination shall be conclusive and evidenced by a resolution of the
Company's Board of Directors) declared or made subsequent to the date
of the Indenture would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the end of
the most recent fiscal quarter ending prior to the Issue Date
to the end of the most recent fiscal quarter ending prior to
the date of such Restricted Payment for which consolidated
financial statements of the Company are available (or, in case
such Consolidated Net Income shall be a deficit, minus 100% of
such deficit);
(B) the aggregate Net Cash Proceeds received by the
Company either (x) as capital contributions to the Company
after the Issue Date or (y) from the issuance or sale of its
Capital Stock (other than Disqualified Stock) subsequent to
the Issue Date (other than an issuance or sale to a Restricted
Subsidiary of the Company), provided that in the event such
issuance or sale is to an employee stock ownership plan or
other trust established by the Company or any of its
Subsidiaries for the benefit of their employees, to the extent
the purchase by such plan or trust is financed by Indebtedness
of such plan or trust for which the Company is liable as
Guarantor or otherwise, such aggregate amount of Net Cash
Proceeds shall be limited to the aggregate amount of principal
payments made by such plan or trust with respect to such
Indebtedness;
(C) the amount by which Indebtedness of the Company
is reduced on the Company's balance sheet upon the conversion
or exchange (other than by a Restricted Subsidiary of the
Company) subsequent to the Issue Date, of any Indebtedness of
the Company or its Restricted Subsidiaries convertible or
exchangeable for Capital Stock (other than Disqualified Stock)
of the Company (less the amount of any cash, or other property
(other than Capital Stock), distributed by the Company upon
such conversion or exchange), plus the amount of any cash or
other property received by the Company or any Restricted
Subsidiary upon such conversion or exchange;
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (i)
repayments of the principal of
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loans or advances or other transfers of assets to the Company
or any Restricted Subsidiary from any Unrestricted Subsidiary
or (ii) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in
the definition of "Investment"), not to exceed in the case of
any such Unrestricted Subsidiary the aggregate amount of
Investments (other than Permitted Investments) made by the
Company or any Restricted Subsidiary in such Unrestricted
Subsidiary after the Issue Date; and
(E) in the case of disposition or repayment of any
Investment constituting a Restricted Payment (without
duplication of any amount deducted in calculating the amount
of Investments at any time outstanding included in the amount
of Restricted Payments), an amount equal to the lesser of the
return of capital or repayment with respect to
such Investment and the initial amount of such Investment, in
either case, less the cost of the disposition of such
Investment.
2. The provisions of Section 4.4(a) will not prohibit:
(a) any purchase, redemption, repurchase, defeasance,
retirement or other acquisition of Capital Stock of the Company or
Subordinated Obligations made by exchange (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) for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries) or a
substantially concurrent capital contribution to the Company; provided,
however, that (A) such purchase, redemption, repurchase, defeasance,
retirement or other acquisition shall be excluded in subsequent
calculations of the amount of Restricted Payments and (B) the Net Cash
Proceeds from such sale or capital contribution shall be excluded in
subsequent calculations under clause (B) of Section 4.4(a);
(b) any purchase, redemption, repurchase, defeasance,
retirement or other acquisition of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Subordinated Obligations of the Company that is permitted to
be Incurred pursuant to Section 4.3; provided,
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however, that such purchase, redemption, repurchase, defeasance,
retirement or other acquisition shall be excluded in subsequent
calculations of the amount of Restricted Payments;
(c) any purchase, redemption, repurchase, defeasance,
retirement or other acquisition of Subordinated Obligations from Net
Available Cash to the extent permitted by Section 4.6; provided,
however, that such purchase, redemption, repurchase, defeasance,
retirement or other acquisition shall be excluded in subsequent
calculations of the amount of Restricted Payments;
(d) any purchase, redemption, repurchase, defeasance,
retirement or other acquisition of Subordinated Obligations upon a
Change of Control to the extent required by the agreement governing
such Subordinated Obligations but only if the Company shall have
complied with Section 4.8 and purchased all Securities tendered
pursuant to the offer to repurchase all the Securities required
thereby, prior to purchasing or repaying such Subordinated Obligations;
provided, however, that (A) the purchase price (stated as a percentage
of principal amount or issue price plus accrued original issue
discount, if less) of such Subordinated Obligations shall not be
greater than the price (stated as a percentage of principal amount) of
the Securities pursuant to any such offer to repurchase the Securities
in the event of a Change of Control, and (B) any such purchase,
redemption, repurchase, defeasance, retirement or other acquisition
shall be included in subsequent calculations of the amount of
Restricted Payments;
(e) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with Section 4.4(a); provided, however, that such
dividends shall be included in subsequent calculations of the amount of
Restricted Payments;
(f) loans, advances, dividends or distributions by the Company
to Holdings or G-II to permit Holdings or G-II, as the case may be, to
repurchase or otherwise acquire its Capital Stock or options, warrants
or other rights in respect thereof, or payments by the Company to
repurchase or otherwise acquire Capital Stock or options, warrants or
other rights in respect thereof, in each case from Management
Investors, such payments, loans, advances, dividends or distributions
not to exceed an amount (net of repayments of any such loans or
advances) equal to $500,000 in any fiscal year and $2.0 million in the
aggregate (plus the Net Cash Proceeds received by the Company since the
Issue Date as a capital contribution
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from the sale to Management Investors of Capital Stock or options,
warrants or other rights in respect thereof); provided, however, that
such payments, loans, advances, dividends or distributions will be
included in subsequent calculations of the amount of Restricted
Payments;
(g) loans, advances, dividends or distributions by the Company
or any Restricted Subsidiary to Holdings or G-II not to exceed an
amount necessary to permit Holdings or G-II to (A) pay its costs
(including all professional fees and expenses) incurred to comply with
its reporting obligations under federal or state laws or under the
Indenture, including any reports filed with respect to the Securities
Act, Exchange Act or the respective rules and regulations promulgated
thereunder, (B) make payments in respect of its indemnification
obligations owing to directors, officers, employees or other Persons
under its charter or by-laws or pursuant to written agreements with any
such Person, to the extent such payments relate to the Company and its
Subsidiaries, (C) pay all reasonable fees and expenses payable by it in
connection with the Transactions, or (D) pay its other operational
expenses (other than taxes) incurred in the ordinary course of business
and not exceeding $500,000 in any fiscal year; provided, however, that
such loans, advances, dividends or distributions will be excluded in
subsequent calculations of the amount of Restricted Payments;
(h) payments by the Company or any Restricted Subsidiary to
Holdings (A) to satisfy or permit Holdings to satisfy its obligations
under the Management Agreements, (B) pursuant to the Tax Sharing
Agreement, (C) to pay or permit Holdings to pay any taxes, charges or
assessments, including but not limited to sales, use, transfer, rental,
ad valorem, value-added, stamp, property, consumption, franchise,
license, capital, net worth, gross receipts, excise, occupancy,
intangibles or similar taxes, charges or assessments (other than
federal, state or local taxes measured by income and federal, state or
local withholding imposed on payments made by Holdings), required to be
paid by Holdings by virtue of its being incorporated or having capital
stock outstanding (but not by virtue of owning stock of any corporation
other than the Company or any of its Subsidiaries), or being a holding
company parent of the Company or receiving dividends from or other
distributions in respect of the stock of the Company, or having
guaranteed any obligations of the Company or any Subsidiary thereof, or
having made any payment in respect of any of the items for which the
Company is permitted to make payments to Holdings pursuant to this
covenant, or (D) to pay or permit Holdings to pay any other federal,
state, foreign,
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provincial or local taxes measured by income for which Holdings is
liable up to an amount not to exceed with respect to such federal taxes
the amount of any such taxes which the Company would have been required
to pay on a separate company basis or on a consolidated basis if the
Company had filed a consolidated return on behalf of an affiliated
group (as defined in Section 1504 of the Internal Revenue Code of 1986,
as amended, or an analogous provision of state, local or foreign law)
of which it were the common parent, or with respect to state and local
taxes, on a combined basis if the Company had filed a combined return
on behalf of an affiliated group consisting only of the Company and its
Subsidiaries; provided, however, that such payments will be excluded in
subsequent calculations of the amount of Restricted Payments;
(i) the payment by the Company of, or loans, advances,
dividends or distributions by the Company to Holdings or G-II to pay,
dividends on the common stock of the Company, Holdings or G-II, as
applicable, following an initial public offering of such common stock,
in an amount not to exceed in any fiscal year 6% of the net proceeds
received by the Company, in or from such public offering; provided,
however, that such payments, loans, advances, dividends or
distributions will be included in subsequent calculations of the amount
of Restricted Payments; and
(j) loans, advances, dividends or distributions by the
Company or any Restricted Subsidiary in an aggregate amount not to
exceed $10.0 million; provided, however, that (A) the Company or any
Restricted Subsidiary shall not be permitted to make Restricted
Payments under this clause (x) unless, after giving effect thereto
(including the Incurrence of any Indebtedness to fund such Restricted
Payment), the Consolidated Coverage Ratio of the Company would be at
least equal to 2.25:1.00 and (B) such loans, advances, dividends or
distributions will be included in subsequent calculations of the amount
of Restricted Payments; and
provided, further, that in the case of clauses 4.4(b) (vii), (ix) and (x) no
Default or Event of Default shall have occurred or be continuing at the time of
such payment after giving effect thereto.
SECTION E. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
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effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company, (ii) make any loans or advances to the Company or (iii) transfer any of
its property or assets to the Company, except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date of the Indenture (including,
without limitation, the Senior Credit Facility);
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary (x) pursuant to an agreement relating to any
Indebtedness Incurred by a Restricted Subsidiary prior to the date on
which such Restricted Subsidiary was acquired by the Company, or of
another Person that is assumed by the Company or a Restricted
Subsidiary in connection with the acquisition of assets from, or merger
or consolidation with, such Person (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company, or such
acquisition of assets, merger or consolidation) and outstanding on the
date of such acquisition, merger or consolidation or (y) pursuant to
any agreement (not relating to any Indebtedness) in existence when a
Person becomes a Subsidiary of the Company or when such agreement is
acquired by the Company or any Subsidiary thereof, that is not created
in contemplation of such Person becoming such a Subsidiary or such
acquisition (for purposes of this clause (2), if another Person is the
Successor Company, any Subsidiary or agreement thereof shall be deemed
acquired or assumed, as the case may be, by the Company when such
Person becomes the Successor Company);
(iii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement (a "Refinancing
Agreement") effecting a refinancing of Indebtedness Incurred pursuant
to, or that otherwise extends, renews, refinances or replaces, an
agreement referred to in clause (1) or (2) of this Section 4.5 or this
clause (3) (an "Initial Agreement") or contained in any amendment to an
Initial Agreement; provided, however, that the encumbrances and
restrictions contained in any such Refinancing Agreement or amendment
are no less favorable to the Holders of the Securities taken as a whole
than encumbrances and restrictions contained in the Initial Agreement
or Initial Agreements to which such
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Refinancing Agreement or amendment relates (as conclusively determined
in good faith by the Board of Directors);
(iv) any encumbrance or restriction (A) that restricts in a
customary manner the subletting, assignment or transfer of any property
or asset that is subject to a lease, license or similar contract, or
the assignment or transfer of any lease, license or other contract, (B)
by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or
any Restricted Subsidiary not otherwise prohibited by the Indenture,
(C) contained in mortgages, pledges or other security agreements
securing Indebtedness of a Restricted Subsidiary to the extent such
encumbrance or restrictions restrict the transfer of the property
subject to such mortgages, pledges or other security agreements or (D)
pursuant to customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement agreements of
the Company or any Restricted Subsidiary;
(v) any restriction with respect to a Restricted Subsidiary
(or any of its property or assets) imposed pursuant to an agreement
entered into for the direct or indirect sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted
Subsidiary (or the property or assets that are subject to such
restriction) pending the closing of such sale or disposition;
(vi) any encumbrance or restriction on the transfer of
property or assets required by any regulatory authority having
jurisdiction over the Company or any Restricted Subsidiary or any of
their businesses; and
(vii) any encumbrance or restriction pursuant to an agreement
relating to any Indebtedness incurred, or any sale of receivables, by a
Foreign Subsidiary.
SECTION F. Limitation on Sales of Assets. 1. The Company will
not, and will not permit any Restricted Subsidiary to, make any Asset
Disposition unless
(a) the Company or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise)
at the time of such Asset Disposition at least equal to the fair market
value of the shares and assets subject to such Asset Disposition, as
such fair market value may be determined (and shall be determined, to
the extent such Asset Disposition or any series of related Xxxxx
00
00
Dispositions involves aggregate consideration in excess of $1.0
million) in good faith by the Board of Directors, whose determination
shall be conclusive (including as to the value of all noncash
consideration),
(b) at least 80% of the consideration therefor (excluding, in
the case of an Asset Disposition of assets, any consideration by way of
relief from, or by any other Person assuming responsibility for, any
liabilities, contingent or otherwise, which are not Indebtedness)
received by the Company or such Restricted Subsidiary is in the form of
cash, and
(c) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be) as follows:
(A) first, to the extent the Company elects (or is
required by the terms of any Senior Indebtedness or Indebtedness
(other than Preferred Stock) of a Restricted Subsidiary), to
prepay, repay or purchase Senior Indebtedness or such
Indebtedness of a Restricted Subsidiary (in each case other than
Indebtedness owed to the Company or a Restricted Subsidiary)
within 365 days after the date of such Asset Disposition;
(B) second, to the extent of the balance of Net Available
Cash after application in accordance with clause (A) above, to
the extent the Company or such Restricted Subsidiary elects, to
reinvest in Additional Assets (including by means of an
Investment in Additional Assets by a Restricted Subsidiary with
Net Available Cash received by the Company or another Restricted
Subsidiary) within 365 days from the date of such Asset
Disposition, or, if such reinvestment in Additional Assets is a
project authorized by the Board of Directors that will take
longer than such 365 days to complete, the period of time
necessary to complete such project;
(C) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A)
and (B) above (such balance, the "Excess Proceeds"), to make an
offer to purchase Securities and (to the extent required by the
terms thereof) any other Senior Subordinated Indebtedness,
pursuant and subject to the conditions of the Indenture and the
agreements governing such other Indebtedness, at a
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purchase price of 100% of the principal amount thereof (or
accreted value, as applicable) plus accrued and unpaid interest
to the purchase date; and
(D) fourth, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A),
(B) and (C) above, to fund (to the extent consistent with any
other applicable provision of the Indenture) any general
corporate purpose (including the repayment of any Subordinated
Obligations);
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A) or (C) above, the Company or such
Restricted Subsidiary will retire such Indebtedness and 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. Notwithstanding the foregoing
provisions of this covenant, the Company and the Restricted Subsidiaries shall
not be required to apply any Net Available Cash in accordance with this covenant
except to the extent that the aggregate Net Available Cash from all Asset
Dispositions that is not applied in accordance with this covenant exceeds $5.0
million. If the aggregate principal amount (or accreted value, as applicable) of
Securities and Senior Subordinated Indebtedness validly tendered and not
withdrawn in connection with an offer pursuant to clause (C) above exceeds the
Excess Proceeds, the Excess Proceeds will be apportioned between the Securities
and such Senior Subordinated Indebtedness, with the portion of the Excess
Proceeds payable in respect of the Securities to equal the lesser of (x) the
Excess Proceeds amount multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Securities and the denominator of which is
the sum of the outstanding principal amount of the Securities and the
outstanding principal amount (or accreted value, as applicable) of the relevant
Senior Subordinated Indebtedness, and (y) the aggregate principal amount of
Securities validly tendered and not withdrawn.
For the purposes of this covenant, the following are deemed to
be cash: (v) Cash Equivalents, (w) the assumption of Indebtedness of the Company
(other than Disqualified Stock of the Company) or any Restricted Subsidiary and
the release of the Company or such Restricted Subsidiary from all liability on
such Indebtedness in connection with such Asset Disposition, (x) Indebtedness of
any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result
of such Asset Disposition, to the extent that the Company and each other
Restricted Subsidiary is released from any Guarantee of such Indebtedness in
connection with such Asset Disposition, (y) securities received by the Company
or any Restricted Subsidiary from the transferee that are
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promptly converted by the Company or such Restricted Subsidiary into cash, and
(z) consideration consisting of Indebtedness of the Company or any Restricted
Subsidiary.
2. In the event of an Asset Disposition that requires the
purchase of Securities pursuant to clause 4.6(a)(iii)(C) above, the Company will
be required to purchase Securities tendered pursuant to an offer by the Company
for the Securities (the "Offer") at a purchase price of 100% of their principal
amount plus accrued and unpaid interest to the Purchase Date in accordance with
the procedures (including prorating in the event of oversubscription) set forth
in the Indenture. If the aggregate purchase price of the Securities tendered
pursuant to the Offer is less than the Net Available Cash allotted to the
purchase of the Securities, the remaining Net Available Cash will be available
to the Company for use in accordance with clause 4.6(a)(iii)(C) above (to repay
Senior Subordinated Indebtedness) or clause 4.6(a)(iii)(D) above. The Company
shall not be required to make an Offer for Securities pursuant to this covenant
if the Net Available Cash available therefor (after application of the proceeds
as provided in clauses 4.6(a)(iii)(A) and 4.6(a)(iii)(B) above) is less than
$5.0 million for any particular Asset Disposition (which lesser amounts shall be
carried forward for purposes of determining whether an Offer is required with
respect to the Net Available Cash from any subsequent Asset Disposition).
3. The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 4.6. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.6, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.6 by virtue
thereof.
SECTION G. Limitation on Transactions with Affiliates. 1. The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction or series of transactions
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Company (an "Affiliate
Transaction") on terms (i) that taken as a whole are less favorable to the
Company or such Restricted Subsidiary, as the case may be, than those that could
be obtained at the time of such transaction in arm's-length dealings with a
Person who is not such an Affiliate and (ii) that, in the event such Affiliate
Transaction involves an aggregate amount in excess of $1.0 million, are not in
writing and (x) have not been approved by a majority of the members of the Board
of Directors having no
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material personal financial interest in such Affiliate Transaction, or (y) in
the event there are no such members, as to which the Company has not obtained a
Fairness Opinion (as hereinafter defined). In addition, any transaction
involving aggregate payments or other transfers by the Company and its
Restricted Subsidiaries in excess of $10.0 million will also require an opinion
(a "Fairness Opinion") from an independent investment banking firm or appraiser,
as appropriate, of national prominence, to the effect that the terms of such
transaction taken as a whole are either (i) no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with a Person
who is not an Affiliate or (ii) fair to the Company or such Restricted
Subsidiary, as the case may be, from a financial point of view.
2. The provisions of Section 4.7(a) shall not prohibit (i) any
Restricted Payment permitted by Section 4.4, any Permitted Investment, or any
other transaction specifically excluded from the definition of the term
"Restricted Payment," (ii) the performance of the Company's or Restricted
Subsidiary's obligations under any employment contract, collective bargaining
agreement, employee benefit plan, related trust agreement or any other similar
arrangement heretofore or hereafter entered into in the ordinary course of
business, (iii) payment of compensation, performance of indemnification or
contribution obligations, or any issuance, grant or award of stock, options or
other securities, to employees, officers or directors in the ordinary course of
business, (iv) maintenance in the ordinary course of business of benefit
programs or arrangements for employees, officers or directors, including
vacation plans, health and the insurance plans, deferred compensation plans, and
retirement or savings plans and similar plans, (v) any transaction between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries, (vi)
loans or advances made to directors, officers or employees of Holdings, the
Company or any Restricted Subsidiary, or guarantees in respect thereof or
otherwise made on their behalf (including any payments under such guarantees),
(A) in respect of travel, entertainment or moving-related expenses incurred in
the ordinary course of business, or (B) in the ordinary course of business not
exceeding $500,000 in the aggregate outstanding at any time, (vii) guarantees of
borrowings by Management Investors in connection with the purchase of Capital
Stock of the Company, Holdings or G-II by such Management Investors, which
guarantees are permitted by Section 4.3, and payments thereunder, (viii) the
Transactions and the incurrence and payment of all fees and expenses payable in
connection therewith, (ix) any other transaction arising out of agreements in
existence on the Issue Date, (x) execution, delivery and performance of the Tax
Sharing Agreement and the Management Agreements, including the initial payment
of a fee of $2.5 million to GSCP and the ongoing payment of fees to GSCP of up
to $1.75
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million per year plus reasonable out of pocket expenses, (xi) any commercial or
other business transaction in the ordinary course of business with any Permitted
Holder or any Affiliate thereof, on terms that taken as a whole are no less
favorable to the Company and its Restricted Subsidiaries than those that could
be obtained at the time in arm's-length dealings with a Person who is not an
Affiliate of the Company and (xii) any transaction in the ordinary course of
business, or approved by a majority of the members of the Board of Directors
having no material personal financial interest in such transaction, between the
Company or any Restricted Subsidiary and any Affiliate of the Company controlled
by the Company that is a joint venture or similar entity primarily engaged in a
Related Business.
SECTION H. Change of Control. 1. Upon the occurrence of a
Change of Control, each Securityholder shall have the right to require the
Company to repurchase all or any part of such Holder's Securities at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), provided, however, that notwithstanding the
occurrence of a Change of Control, the Company shall not be obligated to
purchase the Securities pursuant to this Section 4.8 in the event that it has
exercised its right to redeem all the Securities under Section 3.7 hereof.
In the event that at the time of such Change of Control the
terms of the Bank Indebtedness restrict or prohibit the repurchase of Securities
pursuant to this Section, then prior to the mailing of the notice to Holders
provided for in Section 4.8(b) below but in any event within 30 days following
any Change of Control (unless the Company has exercised its right to redeem all
the Securities under Section 3.7 hereof), the Company shall (i) repay in full
all Bank Indebtedness or offer to repay in full all Bank Indebtedness and repay
the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain
the requisite consent under the agreements governing the Bank Indebtedness to
permit the repurchase of the Securities as provided for in Section 4.8(b) below.
2. Unless the Company has exercised its right to redeem all
the Securities under Section 3.7 hereof, within 30 days following any Change of
Control (or at the Company's option, prior to such Change of Control but after
the public announcement thereof) (except as provided in the proviso to the first
sentence of Section 4.8(a)), the Company shall mail a notice to each Holder with
a copy to the Trustee stating: (1) that a Change of Control has occurred or will
occur and that such Holder has (or upon such occurrence will have) the right to
require the Company to purchase such Holder's
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Securities at a purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on a record date to receive interest
on the relevant interest payment date); (2) the circumstances and relevant facts
and financial information regarding such Change of Control; (3) the repurchase
date (which shall be no earlier than 30 days nor later than 60 days from the
date such notice is mailed); (4) the instructions determined by the Company,
consistent with this Section, that a Holder must follow in order to have its
Securities purchased and (5) that if such offer is made prior to such Change of
Control, payment is conditioned on the occurrence of such Change of Control.
3. Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased.
4. On the purchase date, all Securities purchased by the
Company under this Section shall be delivered to the Trustee for cancellation,
and the Company shall pay the purchase price plus accrued and unpaid interest,
if any, to the Holders entitled thereto.
5. The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.8. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.8, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.8 by virtue
thereof.
SECTION I. Compliance Certificate; Notice of Default. The
Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company an Officer's Certificate signed by the principal
executive, principal financial or principal accounting officer of the Company
complying with Section 314(a)(4) of the TIA and stating that a review of its
activities and the activities of its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officer with a view to
determining whether the Company has kept, observed, performed and fulfilled its
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obligations under this Indenture and further stating, as to each Officer signing
such certificate, whether or not the signer knows of any failure by the Company
or any Subsidiary of the Company to comply with any conditions or covenants in
this Indenture, and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity and describe what
actions, if any, the Company proposes to take with respect to such failure. The
Company shall file with the Trustee written notice of the occurrence of any
Default or Event of Default within five Business Days of its becoming aware of
any such Default or Event of Default.
SECTION J. [Intentionally omitted.]
SECTION K. Limitation on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien (other than Permitted Liens) on any of its property or
assets (including Capital Stock of any other Person), whether owned on the date
of the Indenture or thereafter acquired, securing any Indebtedness that is not
Senior Indebtedness or Guarantor Senior Indebtedness (the "Initial Lien"),
unless contemporaneously therewith effective provision is made to secure the
Indebtedness due under the Indenture and the Securities or, in respect of Liens
on any Restricted Subsidiary's property or assets, any Note Guarantee of such
Restricted Subsidiary, equally and ratably with such obligation for so long as
such obligation is so secured by such Initial Lien. Any such Lien thereby
created in favor of the Securities or any such Note Guarantee will be
automatically and unconditionally released and discharged upon (i) the release
and discharge of the Initial Lien to which it relates, or (ii) any sale,
exchange or transfer to any Person not an Affiliate of the Company of the
property or assets secured by such Initial Lien, or of all of the Capital Stock
held by the Company or any Restricted Subsidiary in, or all or substantially all
the assets of, any Restricted Subsidiary creating such Lien.
SECTION L. Additional Note Guarantors. 1. If the Company or
any of its Domestic Subsidiaries shall acquire or create another Domestic
Subsidiary that is a Significant Subsidiary, then the Company, the Trustee and
such newly acquired or created Domestic Subsidiary shall execute and deliver a
supplemental indenture evidencing such Note Guarantee and deliver an Opinion of
Counsel, in accordance with the terms of this Indenture. The Company will also
have the right to cause any Restricted Subsidiary so to become a Note Guarantor.
Each Note Guarantee will be limited to an amount not to exceed the maximum
amount that can be Guaranteed by that Subsidiary without rendering the Note
Guarantee, as it relates to such Subsidiary, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the
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rights of creditors generally. Such Note Guarantee may be substantially in the
form of Exhibit D hereto or in such other form as may be reasonably satisfactory
to the Trustee and the Company.
2. Except as provided in the applicable Note Guarantee, no
Note Guarantor may consolidate or merge with into (whether or not such Note
Guarantor is the surviving Person) another Person unless (i) the Person formed
by or surviving any such consolidation or merger (if other than a Note Guarantor
or the Company) assumes all the obligations of such Note Guarantor under the
Note Guarantee and the Indenture pursuant to a supplemental indenture, in form
reasonably satisfactory to the Trustee, and (ii) if such merger or consolidation
is with a Person other than the Company or a Restricted Subsidiary, (x)
immediately after such transaction, no Default or Event of Default exists and
(y) the Company will, at the time of such transaction after giving pro forma
effect thereto, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to Section 4.3(a).
SECTION M. Limitation on the Sale or Issuance of Preferred
Stock of Restricted Subsidiaries. The Company will not sell any shares of
Preferred Stock of a Restricted Subsidiary, and will not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell any shares of its Preferred
Stock to any Person (other than to the Company or a Restricted Subsidiary, or to
directors as directors' qualifying shares, or (in the case of any Foreign
Subsidiary) to the extent required by applicable law); provided, however, that
(a) the Company or any Restricted Subsidiary is permitted to sell Preferred
Stock of a Subsidiary in compliance with the terms of Section 4.6 and (b) any
such Preferred Stock may be issued or sold if Incurred by any Restricted
Subsidiary in compliance with Section 4.3.
SECTION N. Limitation on Layering. The Company shall not incur
any Indebtedness if such Indebtedness is expressly subordinate in right of
payment to any Senior Indebtedness unless such Indebtedness is Senior
Subordinated Indebtedness or is contractually subordinated in right of payment
to Senior Subordinated Indebtedness. No Note Guarantor shall incur any
Indebtedness if such Indebtedness is expressly subordinate in right of payment
to any Guarantor Senior Indebtedness of such Note Guarantor unless such
Indebtedness is Guarantor Senior Subordinated Indebtedness of such Note
Guarantor or is contractually subordinated in right of payment to Guarantor
Senior Subordinated Indebtedness of such Note Guarantor.
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ARTICLE V.
Successor Company
SECTION A. When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person, unless:
(a) the resulting, surviving or transferee Person (the
"Successor Company") will be a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia and the Successor Company (if not the Company) will
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all the obligations of the Company under the Securities and
the Indenture; (ii) immediately after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the
Successor Company or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default will
have occurred and be continuing; (iii) immediately after giving effect
to such transaction, the Consolidated Coverage Ratio of the Successor
Company would be at least equal to the greater of (A) 1.75:1.00 and (B)
a ratio equal to 75% of the actual Consolidated Coverage Ratio of the
Company as of such date of determination; and (iv) each Note Guarantor
(other than any party to any such merger) shall have delivered a
written instrument in form and substance reasonably satisfactory to the
Trustee confirming its Note Guarantee; and (v) the Company will have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each to the effect that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with the Indenture;
provided that (x) in giving such opinion such counsel may rely on such
Officer's Certificate as to any matters of fact (including without
limitation as to compliance with the foregoing clauses (ii) and (iii)),
and (y) no Opinion of Counsel will be required for a consolidation,
merger or transfer described in the last paragraph of this Section 5.1.
Any Indebtedness that becomes an obligation of the Company or any
Restricted Subsidiary (or that is deemed to be Incurred by any
Restricted Subsidiary that becomes a Restricted Subsidiary) as a result
of such transaction undertaken in compliance with this covenant, and
any Refinancing Indebtedness with respect thereto, shall be deemed to
have been Incurred in compliance with Section 4.3.
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The Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the Company under the
Indenture, and thereafter the predecessor Company shall be relieved of
all obligations and covenants under this Agreement, except that, in the
case of a conveyance, transfer or lease of all or substantially all its
assets, the predecessor Company will not be released from the
obligation to pay the principal of and interest on the Securities.
Notwithstanding Section 5.1(ii) and (iii), (1) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (2) the Company may merge with an
Affiliate incorporated or organized for the purpose of reincorporating or
reorganizing the Company in another jurisdiction to realize tax or other
benefits. Notwithstanding the foregoing, the Company may enter into, perform and
consummate the Transactions.
ARTICLE VI.
Defaults and Remedies
SECTION A. Events of Default. An "Event of Default" occurs if:
(i) the Company defaults in any payment of interest on any
Security when the same becomes due and such default continues for a
period of 30 days;
(ii) the Company defaults in the payment of the principal of
any Security when the same becomes due at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise, whether or not such payment shall be prohibited by Article
10;
(iii) the Company fails to comply with Section 5.1;
(iv) the Company fails to comply with Section 4.2, 4.3, 4.4,
4.5, 4.6, 4.7, 4.8, 4.11, 4.12, 4.13 or 4.14 (other than a failure to
purchase Securities when required under Section 4.6 or 4.8) and such
failure continues for 30 days after the notice specified below;
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(v) the Company fails to comply with any of its agreements in
the Securities or this Indenture (other than those referred to in (1),
(2), (3) or (4) above) and such failure continues for 60 days after the
notice specified below;
(vi) any Note Guarantor fails to comply with its obligations
under any Note Guarantee to which such Note Guarantor is a party, after
any applicable grace period;
(vii) Indebtedness of the Company or any Significant
Subsidiary is not paid within any applicable grace period after final
maturity or the acceleration by the holders thereof because of a
default and the total amount of such Indebtedness unpaid or accelerated
exceeds $5.0 million or its foreign currency equivalent at the time;
(viii) the Company or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law (as defined below):
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(ix) any judgment or decree for the payment of money (net of
any insurance or indemnity payments actually received in respect
thereof prior to or within 90 days from the entry thereof, or to be
received in respect thereof in the event any appeal thereof shall be
unsuccessful) in excess of $5.0 million or its foreign currency
equivalent at the time is entered against the Company or any
Significant Subsidiary that is not discharged, or bonded or insured by
a third Person and either (A) an enforcement proceeding has been
commenced upon such judgment or decree or (B) there is a period of 90
days following the entry of such
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judgment or decree during which such judgment or decree is not
discharged, waived or the execution thereof stayed; or
(x) any Note Guarantee by a Note Guarantor which is a
Significant Subsidiary shall cease to be in full force and effect
(except as contemplated by the terms thereof or of this Indenture) or
any such Note Guarantor shall deny or disaffirm its obligations in
writing under this Indenture or any Note Guarantee and such Default
continues for 10 days after the notice specified below.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) or (5) above is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities notify the Company of the Default and the Company
does not cure such Default within the time specified after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any Event of Default under clause (6) above and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9) above, its status and what action the Company is taking
or proposes to take with respect thereto.
SECTION B. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.1(7) or (8) with respect to the Company)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least a majority in principal amount of the outstanding Securities by
notice to the Company and the Trustee, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.1(7) or (8) with
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respect to the Company occurs and is continuing, the principal of and interest
on all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in principal amount of the
outstanding Securities by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION C. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION D. Waiver of Past Defaults. The Holders of a majority
in principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.2 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION E. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1, that the Trustee determines is unduly prejudicial to the
rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any
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action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION F. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
outstanding Securities do not give the Trustee a direction inconsistent
with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION G. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and premium (if any) and interest on the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION H. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
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SECTION I. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
committee of creditors appointed in the matter, as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Company, any Subsidiary or Note
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and-advances of the Trustee, its agents and its counsel, and any other amounts
due the Trustee under Section 7.7.
SECTION J. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness to the extent
required by Article 10;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Trustee shall mail to each Securityholder and the Company
a notice that states the record date, the payment date and amount to be paid.
SECTION K. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
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discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Company, a suit by the Trustee, a suit
by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
principal amount of the Securities.
SECTION L. Waiver of Stay or Extension Laws. The Company (to
the extent it may lawfully do so) shall not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII.
Trustee
SECTION A. Duties of Trustee. 1. If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
2. Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
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furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
3. 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:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
4. Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.
5. The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
6. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
7. No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
8. Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION B. Rights of Trustee. Subject to Section 7.1: 1. The
Trustee may rely on any document believed by it to be genuine and to have been
signed or
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presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
2. Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
3. The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
4. The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
5. The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
6. 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, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney, during reasonable business
hours and subject to executing a confidentiality undertaking in customary form
with respect to confidential and/or proprietary information of the Company;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to so proceeding.
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7. The Trustee shall not be deemed to have knowledge of any
default or fact the occurrence of which requires the Trustee to take any action
(other than a payment default hereunder) unless a Trust Officer actually knows
of such default or fact.
8. The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
9. The Trustee shall not be deemed to have notice of any Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such an Event of
Default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
10. Upon request of the Trustee, the Company shall make
reasonable efforts to execute and deliver such further instruments and do such
further acts as may be reasonably necessary to carry out more effectively the
purpose of this Indenture. The parties hereto agree that the purpose of this
provision shall be for administrative purposes only.
SECTION C. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION D. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION E. Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Trust Officer of the Trustee, the Trustee
shall mail to each Securityholder notice of the Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of or premium
(if any) or interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security, if
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any), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
SECTION F. Reports by Trustee to Holders. As promptly as
practicable after each March 15 beginning with the March 15 following the date
of this Indenture (and in any event prior to May 15 in each year), but only upon
the occurrence within the previous 12 months of any events specified in TIA
Section 313(a), the Trustee shall mail to each Securityholder a brief report
dated as of March 15 that complies with TIA Section 313(a). The Trustee shall
also comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION G. Compensation and Indemnity. The Company shall pay
to the Trustee, Paying Agent and Registrar from time to time such compensation
as shall be agreed in writing between the Company and the Trustee for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee, Paying Agent, Registrar, and
each of their officers, directors, agents and employees (each in their
respective capacities), for and hold each of them harmless against any and all
loss, demand, claim, liability or expense (including reasonable attorneys' fees
and expenses) incurred by them without negligence or bad faith on their part in
connection with the acceptance or administration of this trust and the
performance of their duties hereunder. The Trustee, Paying Agent and Registrar
shall notify the Company of any claim for which they may seek indemnity promptly
upon obtaining actual knowledge thereof; provided that any failure so to notify
the Company shall not relieve the Company of its indemnity obligations hereunder
except to the extent the Company shall have been adversely affected thereby. The
Company shall defend the claim and the indemnified party shall provide
reasonable cooperation at the Company's expense in the defense. Such indemnified
parties may have separate counsel and the Company shall pay the fees and
expenses of such counsel; provided that the Company shall not be required to pay
such
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fees and expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and such parties in connection with such defense. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by an indemnified party through any indemnified party's own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture or the resignation or removal of
the Trustee. When the Trustee, Paying Agent or Registrar incurs expenses after
the occurrence of a Default specified in Section 6.1(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION H. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company in writing. The Holders of a majority in
principal amount of the outstanding Securities may remove the Trustee by so
notifying the Company and the Trustee and may appoint a successor Trustee with
the consent of the Company, which shall not be unreasonably withheld. The
Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the outstanding Securities and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of
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Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the outstanding Securities may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee.
SECTION I. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities 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 Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is
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anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION J. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall have
a combined capital and surplus of at least $50.0 million as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION K. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION L. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
ARTICLE VIII.
Discharge of Indenture; Defeasance
SECTION A. Discharge of Liability on Securities; Defeasance.
1. When (i) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.7) for cancellation or
(ii) all outstanding Securities have become due and payable, whether at maturity
or as a result of the mailing of a notice of redemption pursuant to Article 3
hereof and the Company irrevocably deposits with the Trustee funds or U.S.
Government Obligations on which payment of principal and interest when due will
be sufficient to pay at maturity or upon redemption all outstanding Securities,
including interest thereon to maturity or such redemption date (other than
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Securities replaced pursuant to Section 2.7), and if in either case the Company
pays all other sums payable hereunder by the Company, then this Indenture shall,
subject to Section 8.1(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officer's Certificate and an Opinion of Counsel and at
the cost and expense of the Company.
2. Subject to Sections 8.1(c) and 8.2, the Company at any time
may terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.2 (subject
to any requirement of the TIA), 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.11, 4.12, 4.13,
4.14, 5.1 (iii) and the operation of Sections 6.1(4), 6.1(6), 6.1(7) (with
respect to Subsidiaries of the Company only), 6.1(8) (with respect to
Subsidiaries of the Company only) and 6.1(9) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.1(4),
6.1(6), 6.1(7), 6.1(8) (but only with respect to certain bankruptcy events of a
Significant Subsidiary), 6.1(9) or 6.1(10) or because of the failure of the
Company to comply with (iii) of Section 5.1. If the Company exercises its legal
defeasance option or its covenant defeasance option, each Note Guarantor will be
automatically and unconditionally released and discharged from all of its
obligations under its Note Guarantee.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
3. Notwithstanding clauses (a) and (b) above, Sections 2.3,
2.4, 2.5, 2.6, 2.7, 7.7, 7.8, 8.4, 8.5 and 8.6 shall survive until the
Securities have been paid in full. Thereafter, Sections 7.7, 8.4 and 8.5 shall
survive.
SECTION B. Conditions to Defeasance. The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
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(i) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal,
premium (if any) and interest on the Securities to maturity or
redemption, as the case may be;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(iii) 90 days pass after the deposit is made and during the
90-day period no Default specified in Section 6.1(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period;
(iv) the deposit does not constitute a material default under
any other material agreement binding on the Company and is not
prohibited by Article 10;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) 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, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Securityholders 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
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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; and
(viii) the Company delivers to the Trustee an Officer's
Certificate and an Opinion of Counsel, each to the effect that all
conditions precedent under this Section 8.2 to the defeasance and
discharge of the Securities as contemplated by this Article 8 have been
complied with; provided that in giving such opinion such counsel may
rely on such Officer's Certificate as to any matters of fact (including
without limitation as to compliance with the foregoing clauses (1),
(2), (3) and (4)).
Either defeasance option may be exercised to any redemption
date or to the maturity date for the Securities. Before or after a deposit, the
Company may make arrangements reasonably satisfactory to the Trustee for the
redemption of Securities at a future date in accordance with Article 3.
SECTION C. Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities
so held in trust are not subject to Article 10.
SECTION D. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon written request any excess
money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Securityholders entitled to the money must look to
the Company for payment as general unsecured creditors and all liability of the
Trustee or the Paying Agent with respect to such trust money shall thereupon
cease.
SECTION E. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest
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received on such U.S. Government Obligations other than any tax, fee or other
charge that by law is for the account of the Securityholders.
SECTION F. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX.
Amendments
SECTION A. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5, or otherwise to provide for the
assumption by a successor of the obligations of the Company under the
Indenture;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to provide that any Indebtedness that becomes or will
become an obligation of the Successor Company pursuant to a transaction
governed by the
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provisions of Article 5 (and that is not a Subordinated Obligation) is
Senior Subordinated Indebtedness for the purposes of this Indenture;
(v) to add Guarantees with respect to the Securities;
(vi) to secure the Securities;
(vii) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred upon
the Company;
(viii) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA;
(9) to enter into the First Supplemental Indenture; or
(10) to make any change that does not adversely affect the
rights of any Securityholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION B. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the consent of, and compliance with any provision of
this Indenture or the Securities may be waived by, the Holders of at least a
majority in principal amount of the outstanding Securities. However, without the
consent of each Securityholder affected, an amendment may not:
(i) reduce the amount of Securities whose Holders must consent
to an amendment;
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(ii) reduce the rate of or extend the time for payment of
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(v) make any Security payable in money other than that stated
in the Security;
(vi) make any change in Article 10 that adversely affects the
rights of any Securityholder;
(vii) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities; or
(viii) make any change to the second sentence of this Section.
In addition, without the consent of the Securityholders
holding 90% in principal amount of the Securities then outstanding, no amendment
may release any Note Guarantor that is a Significant Subsidiary from any of its
obligations under its Note Guarantee or this Indenture, except in compliance
with the terms thereof or of this Indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
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After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION C. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION D. Effect of Amendment; Revocation and Effect of
Consents and Waivers. Upon the execution of any amendment under this Article 9,
this Indenture shall be modified in accordance therewith, and such amendment
shall form a part of this Indenture for all purposes. A consent to an amendment
or a waiver by a Holder of a Security shall bind the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent or waiver
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
instrument providing for the amendment or waiver is signed by the parties
thereto. After an amendment or waiver becomes effective, it shall bind every
Securityholder. An amendment or waiver becomes effective once the requisite
number of consents are received by the Company or the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 180 days after such record date.
SECTION E. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the
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appropriate notation or to issue a new Security shall not affect the validity of
any amendment or waiver.
SECTION F. Trustee To Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel each to the effect that
such amendment is authorized or permitted by this Indenture and complies with
the provisions hereof (including Section 9.3); provided that in giving such
opinion such counsel may rely on such Officer's Certificate as to any matters of
fact.
SECTION G. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame, and subject to the terms and conditions, set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X.
Subordination
SECTION A. Agreement To Subordinate. The Company agrees, and
each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article 10, to the prior payment in full
(when due) of all existing and future Senior Indebtedness and that the
subordination is for the benefit of and enforceable by the holders of Senior
Indebtedness. The Securities shall in all respects rank pari passu with all
other Senior Subordinated Indebtedness of the Company and only Indebtedness of
the Company that is Senior Indebtedness shall rank senior to the Securities in
accordance with the provisions set forth herein. For purposes of these
subordination provisions, the Indebtedness evidenced by the Securities is deemed
to include the liquidated damages
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payable pursuant to the provisions set forth in the Securities and the Exchange
and Registration Rights Agreement. All provisions of this Article 10 shall be
subject to Section 10.12.
SECTION B. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company upon a total or partial
liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(i) holders of Senior Indebtedness shall be entitled to
receive payment in full of the Senior Indebtedness before
Securityholders shall be entitled to receive any payment of principal
of or interest on the Securities; and
(ii) until the Senior Indebtedness is paid in full, any
payment or distribution to which Securityholders would be entitled but
for this Article 10 shall be made to holders of Senior Indebtedness as
their interests may appear.
SECTION C. Default on Senior Indebtedness. The Company may not
pay the principal of, or premium (if any) or interest on the Securities or make
any deposit pursuant to Section 8.1 and may not purchase, redeem or otherwise
retire any Securities (collectively, "pay the Securities") if (i) any Senior
Indebtedness is not paid when due in cash or Cash Equivalents or (ii) any other
default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration has been
rescinded in writing or (y) such Senior Indebtedness has been paid in full in
cash or Cash Equivalents; provided, however, that the Company may pay the
Securities without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of the
Designated Senior Indebtedness with respect to which either of the events in
clause (i) or (ii) of this sentence has occurred and is continuing. In addition,
during the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods, the
Company may not pay the Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Trustee (with a copy to the Company) of
written notice (a "Blockage Notice") of such default from the Representative of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier
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if such Payment Blockage Period is terminated (i) by written notice to the
Trustee and the Company from the Person or Persons who gave such Blockage
Notice, (ii) by repayment in full of such Designated Senior Indebtedness or
(iii) because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the Securities after the end of such Payment Blockage Period. Not more than
one Blockage Notice may be given in any consecutive 360-day period, irrespective
of the number of defaults with respect to Designated Senior Indebtedness during
such period; provided, however, that if any Blockage Notice within such 360-day
period is given by or on behalf of any holders of Designated Senior Indebtedness
(other than Bank Indebtedness), the Representative of Bank Indebtedness may give
another Blockage Notice within such period; provided further, however, that in
no event may the total number of days during which any Payment Blockage Period
or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period.
SECTION D. Acceleration a Payment of Securities. If payment of
the Securities is accelerated because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Indebtedness
(or their Representative) of the acceleration. If any Designated Senior
Indebtedness is outstanding, the Company may not pay the Securities until five
Business Days after such holders or the Representative of the Designated Senior
Indebtedness receive notice of such acceleration and, thereafter, may pay the
Securities only if this Article 10 otherwise permits payment at that time.
SECTION E. When a Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of the provisions of
Article 10 should not have been made to them, the Securityholders who receive
the distribution shall hold it in trust for holders of Senior Indebtedness and
pay it over to them as their interests may appear.
SECTION F. Subrogation. After all Senior Indebtedness is paid
in full and until the Securities are paid in full, Securityholders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article 10 to holders of Senior Indebtedness which otherwise would have been
made to Securityholders is not, as
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between the Company and Securityholders, a payment by the Company on Senior
Indebtedness.
SECTION G. Relative Rights. This Article 10 defines the
relative rights of Securityholders and holders of Senior Indebtedness prior to
the Subordination Termination Date. Nothing in this Indenture shall:
(i) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(ii) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default, subject to the rights of holders
of Senior Indebtedness to receive distributions otherwise payable to
Securityholders.
SECTION H. Subordination May Not Be Impaired by Company. No
right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or by its failure to comply with this Indenture.
SECTION I. Rights of Trustee and Paying Agent. The Company
shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities. Failure to give such notice shall not affect the
subordination of the Securities to Senior Indebtedness. Notwithstanding Section
10.3, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 10. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
however, that, if an issue of Senior Indebtedness has a Representative, only the
Representative may give the notice. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of any Senior Indebtedness (or a Representative of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or Representative thereof.
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The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION J. Distribution or Notice to Representative. Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION K. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Securityholders or the Trustee to accelerate the
maturity of the Securities.
SECTION L. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article 10, and none of the Securityholders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
SECTION M. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.2
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article
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10. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article 10, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.1 and 7.2 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 10.
SECTION N. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION O. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Securityholders or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article 10 or otherwise. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article 10 and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION P. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
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SECTION Q. Trustee's Compensation Not Prejudiced. Nothing in
this Article shall apply to amounts due to the Trustee pursuant to other
sections of this Indenture.
ARTICLE XI.
Miscellaneous
SECTION A. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION B. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
c/o Telex Communications, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention of: Xxxx Xxxxxxxxx
with a copy to:
Greenwich Street Capital Partners
000 Xxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of: Xxxxxxxx X. Xxxxxx
and:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
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New York, New York 10022
Attention of: Xxxxx Xxxxxxxxxx
if to the Trustee:
Manufacturers and Traders Trust
Company
Xxx X&X Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention of: Xxxxxxx X. Xxxxxxx
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
All notices and communications shall be deemed to be duly
given: at the time delivered, if personally delivered, or five Business Days
after being deposited into the mail, if mailed. All notices may be waived by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice for all purposes of this
Indenture. Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION C. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and their agents shall have
the protection of TIA Section 312(c).
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SECTION D. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee to the effect that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee to the effect that, in the opinion of such
counsel, all such conditions precedent have been complied with,
provided that in giving such opinion such counsel may rely on any
Officer's Certificate or certificate of a public official as to any
matters of fact; and
provided, further, that, in the case of any such application or request as to
which the furnishing of any Officer's Certificate or Opinion of Counsel is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
SECTION E. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(i) a statement to the effect that the individual or counsel
making such certificate or opinion has read such covenant or condition;
(ii) 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;
(iii) a statement to the effect that, in the opinion of such
individual or counsel, such individual or counsel has made such
examination or investigation as is necessary to enable such individual
or counsel to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
individual or counsel, such covenant or condition has been complied
with;
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provided that an Opinion of Counsel can rely as to matters of fact on an
Officer's Certificate or certificates of public officials.
SECTION F. When Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee actually knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION G. Acts of Holders; Rules by Trustee, Paying Agent and
Registrar. Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by 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. The Trustee
may make reasonable rules for action by or a meeting of Securityholders not
inconsistent with the foregoing. The Registrar and the Paying Agent may make
reasonable rules for their functions.
SECTION H. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which commercial banking institutions (including, without
limitation, the Federal Reserve System) are authorized or required by law to
close in New York City. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION I. Governing Law. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION J. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company or a Note Guarantor shall not
have any liability for any obligations of the Company or any Note Guarantor
under the Securities, this
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Indenture or any Note Guarantee or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION K. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION L. Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
SECTION M. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION N. Separability. In case any provision of this
Indenture, the Securities or the Note Guarantees shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION O. Benefits of Indenture. Nothing in this Indenture,
the Securities or any Note Guarantee, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
GST ACQUISITION CORP.
By:
-----------------------------
Name:
Title:
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MANUFACTURERS AND TRADERS
TRUST COMPANY
By:
-----------------------------
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
--------
(1) This paragraph should only be added if the Security is issued in global
form.
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RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, IN A TRANSACTION
COMPLYING WITH THE REQUIREMENTS OF RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULES 501 (A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN THE CASE OF ANY OF THE FOREGOING CLAUSES (A)-(F), A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO COMPANY AND THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
10 1/2% SENIOR SUBORDINATED NOTE DUE 2007
CUSIP No.________
$[ ]
[GST ACQUISITION CORP.,] a Delaware corporation, promises to pay to
[ ], or registered assigns, the principal sum of $[ ] on May 1, 2007.
Interest Payment Dates: May 1 and November 1.
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Record Dates: April 15 and October 15.
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Additional provisions of this Security are set forth on the other side
of this Security.
[Seal] [GST ACQUISITION CORP.]
by
___________________________________
Dated: May [ ], 1997
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
MANUFACTURERS AND
TRADERS TRUST COMPANY
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture
by
______________________,
Authorized Signatory
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[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10 1/2% Senior Subordinated Note due 2007
1. Interest
[GST ACQUISITION CORP.], a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will use its
best efforts to have the Exchange Offer Registration Statement and, if
applicable, a Shelf Registration Statement (each a "Registration Statement")
declared effective by the Commission as promptly as practicable after the filing
thereof. If (i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to 60 days after the Issue Date; (ii) the Exchange Offer
Registration Statement is not declared effective within 150 days after the Issue
Date; (iii) the Exchange Offer is not consummated on or prior to 165 days after
the Issue Date; (iv) the Shelf Registration Statement is not filed with the
Commission within 60 days after the Shelf Notice is required to be delivered or
is not declared effective within 150 days after such date or (v) the Shelf
Registration Statement is filed and declared effective within 150 days after the
date the Shelf Notice is required to be delivered but shall thereafter cease to
be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 30 days by an additional
or amended Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (v), a "Registration Default"), the Company
will pay liquidated damages to each holder of Transfer Restricted Securities,
during the period of such Registration Default, in an amount equal to $0.192 per
week per $1,000 principal amount of the Securities constituting Transfer
Restricted Securities held by such holder until the applicable Registration
Statement is filed or declared effective, the Exchange Offer is consummated or
the Shelf Registration Statement again becomes effective, as the case may be.
All accrued liquidated damages shall be paid to holders in the same manner as
interest payments on the Securities on semi-annual payment dates which
correspond to interest payment dates for the Securities. Following the cure of
all Registration Defaults, the accrual of liquidated damages will cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such liquidated damages.
The Company will pay interest semiannually on May 1, and November 1 of
each year. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from May 6, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at
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the rate borne by the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the April 15 or October 15 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may, at its option, pay principal
and interest (i) by check payable in such money or (ii) by wire transfer of
immediately available funds to such account as may be designated by a Holder and
as specified in the books of the Registrar. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar
Initially, Manufacturers and Traders Trust Company, a New York trust
company ("Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of May
6, 1997 (as amended or supplemented from time to time, "Indenture"), between the
Company and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "TIA"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured obligations of the Company
limited to $125.0 million aggregate principal amount at any one time outstanding
(subject to Section 2.7 of the Indenture). This Security is one of the Initial
Securities referred to in the Indenture. The Securities include the Initial
Securities and any Exchange Securities issued in exchange for the
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121
Initial Securities pursuant to the Indenture. The Initial Securities and the
Exchange Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the issuance of debt by
the Company, the payment of dividends and other distributions and acquisitions
or retirements of the Company's Capital Stock and Subordinated Obligations, the
incurrence by the Company and its Restricted Subsidiaries of Liens on its
property and assets which do not equally and ratably secure the Securities, the
sale or transfer of assets and Subsidiary Stock, investments by the Company,
consolidations, mergers and transfers of all or substantially all of the
Company's assets and transactions with Affiliates. In addition, the Indenture
limits the ability of the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the next two paragraphs, the Securities may not
be redeemed pursuant to this paragraph 5 at the option of the Company prior to
May 1, 2002. On and after that date, the Company may redeem the Securities in
whole at any time or in part from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest payment
date), if redeemed during the 12-month period beginning on or after May 1 of the
years set forth below:
Redemption
Period Price
2002................................................ 105.250%
2003................................................ 103.500%
2004................................................ 101.750%
2005 and thereafter................................. 100.000%
Notwithstanding the foregoing, at any time and from time to time prior
to May 1, 2000, the Company may redeem in the aggregate up to 33 1/3% of the
original aggregate principal amount of the Securities with the proceeds of one
or more Public Equity Offerings by the Company following which there is a Public
Market, at a redemption price (expressed as a percentage of principal amount) of
110.5% plus accrued interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the
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122
relevant interest payment date); provided, however, that at least 66 2/3% of the
original aggregate principal amount of the Securities must remain outstanding
after each such redemption.
At any time on or prior to May 1, 2002, the Securities may also be
redeemed as a whole at the option of the Company upon the occurrence of a Change
of Control, upon not less than 30 nor more than 60 days' prior notice (but in no
event more than 180 days after the occurrence of such Change of Control) mailed
by first-class mail to each Holder's registered address, at a redemption price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the Redemption Date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date).
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued interest on all Securities (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions specified in the Indenture, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
purchase price in cash equal to 101% of the principal amount of the Securities
to be repurchased plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of holders of record on the relevant record
date to receive interest due on the related interest payment date) as provided
in, and subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company agrees, and each
Securityholder by accepting a Security
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123
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give effect to such provisions and appoints the
Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15
days before a selection of Securities to be redeemed or 15 days before an
interest payment date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes, subject to provisions for record dates with respect to
payment of interest.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the consent of the Holders of at
least a majority in principal amount outstanding of the Securities and (ii) any
default or noncompliance with any provision
9
124
may be waived with the consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add Guarantees with respect to the Securities, or
to secure the Securities, or to add additional covenants or surrender rights and
powers conferred on the Company, or to provide that any Indebtedness that
becomes or will become an obligation of the Successor Company pursuant to
Article 5 (and that is not a Subordinated Obligation) is Senior Subordinated
Indebtedness for the purposes of the Indenture, or to comply with any request of
the SEC in connection with qualifying the Indenture under the TIA, or to make
any other change that does not adversely affect the rights of any
Securityholder.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default in any
payment of interest on any Security when due, continued for 30 days, (ii) a
default in the payment of principal of any Security when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise, whether or not such payment is prohibited by Article 10 of the
Indenture, (iii) the failure by the Company to comply with its obligations under
Section 5.1 of the Indenture, (iv) the failure by the Company to comply for 30
days after notice with certain of its obligations under Article 4 of the
Indenture (in each case, other than a failure to purchase Securities), (v) the
failure by the Company to comply for 60 days after notice with its other
agreements contained in the Securities or the Indenture, (vi) the failure by any
Note Guarantor to comply with its obligations under any Note Guarantee to which
such Note Guarantor is a party, after any applicable grace period, (vii) the
failure by the Company or any Significant Subsidiary to pay any Indebtedness
within any applicable grace period after final maturity or the acceleration of
any such Indebtedness by the holders thereof because of a default if the total
amount of such Indebtedness unpaid or accelerated exceeds $5.0 million or its
foreign currency equivalent (the "cross acceleration provision"), (viii) certain
events of bankruptcy, insolvency or reorganization of the Company or a
Significant Subsidiary (the "bankruptcy provisions"), (ix) the rendering of any
judgment or decree for the payment of money in an amount (net of any insurance
or indemnity payments actually received in respect thereof prior to or within 90
days from the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) in excess of $5.0 million or its
foreign currency equivalent against the Company or a Significant Subsidiary that
is not discharged, or bonded or insured by a third Person, if (A) an enforcement
proceeding thereon is commenced or (B) such judgment or decree remains
outstanding for a period of 90 days following such judgment or decree and is not
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125
discharged, waived or stayed (the "judgment default provision") or (x) the
failure of any Note Guarantee by a Note Guarantor which is a Significant
Subsidiary to be in full force and effect (except as contemplated by the terms
thereof or of the Indenture) or the denial or disaffirmation in writing by any
such Note Guarantor of its obligations under the Indenture or any Note Guarantee
if such Default continues for 10 days. If an Event of Default (other than a
Default relating to certain events of bankruptcy, insolvency or reorganization
of the Company) occurs and is continuing, the Trustee or the Holders of at least
a majority in principal amount of the outstanding Securities may declare the
principal of and accrued but unpaid interest on all the Securities to be due and
payable immediately. Certain events of bankruptcy, insolvency, or reorganization
are Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
outstanding Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if and so long as
a committee of its Trust Officers in good faith determines that withholding
notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
or a Note Guarantor shall not have any liability for any obligations of the
Company or any Note Guarantor under the Securities, the Indenture or any Note
Guarantee or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
17. Authentication
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This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
GST ACQUISITION CORP.
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
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127
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date:____________________ Your Signature:_______________________________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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128
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $________ principal amount of Securities held in
(check applicable space) _____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
/ / has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
(1) / / acquired for the undersigned's own account, without transfer
(in satisfaction of Section 2.06(a)(ii)(A) or Section
2.06(d)(i)(A) of the Indenture); or
(2) / / transferred to the Company; or
(3) / / transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
(4) / / transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933, as amended; or
(5) / / transferred to an institutional "accredited investor" (as
defined in Rules 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as
14
129
amended), that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form
of which letter appears as Exhibit C to the Indenture; or
(6) / / transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as
amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (4), (5) or
(6) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended, such as the exemption provided by Rule 144
under such Act.
------------------------------
Signature
Signature Guarantee:
------------------------------ ------------------------------
Signature
(Signature must be guaranteed
by a participant in a signature
guarantee medallion program)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.6 or 4.8 of the Indenture, state the amount: $
Date:__________ Your Signature:_________________________________________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
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EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)
TELEX COMMUNICATIONS, INC.
10 1/2% SENIOR SUBORDINATED NOTE DUE 2007, SERIES A
No. CUSIP No.________
$[ ]
TELEX COMMUNICATIONS, INC., a Delaware corporation, promises to pay to
[ ], or registered assigns, the principal sum of $[ ] on May 1, 2007.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
--------
(1) This paragraph should only be added if the Security is issued in global
form.
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Additional provisions of this Security are set forth on the other side
of this Security.
[Seal] TELEX COMMUNICATIONS, INC.
by
___________________________________
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The ________________________
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture
by
_____________________________________________
Authorized Signatory
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133
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
10 1/2% Senior Subordinated Note due 2007, Series A
1. Interest
Telex Communications, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Company will pay
interest semiannually on May 1 and November 1 of each year. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from May 6, 1997. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal at the rate borne by the Securities, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the March 1 or September 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may, at its option, pay principal
and interest (i) by check payable in such money or (ii) by wire transfer of
immediately available funds to such account as may be designated by the Holder
and as specified in the books of the Registrar. It may mail an interest check to
a Holder's registered address.
3. Paying Agent and Registrar
Initially, Manufacturers and Traders Trust Company, a New York trust
company ("Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
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134
The Company issued the Securities under an Indenture dated as of May
6, 1997 (as amended or supplemented from time to time, "Indenture"), between the
Company and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "TIA"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured obligations of the Company
limited to $125.0 million aggregate principal amount at any one time outstanding
(subject to Section 2.7 of the Indenture). This Security is one of the Exchange
Securities referred to in the Indenture. The Securities include the Initial
Securities and any Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the issuance of debt by the Company,
the payment of dividends and other distributions and acquisitions or retirements
of the Company's Capital Stock and Subordinated Obligations, the incurrence by
the Company and its Restricted Subsidiaries of Liens on its property and assets
which do not equally and ratably secure the Securities, the sale or transfer of
assets and Subsidiary Stock, investments by the Company, consolidations, mergers
and transfers of all or substantially all of the Company's assets and
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the next two paragraphs, the Securities may not
be redeemed pursuant to this paragraph 5 at the option of the Company prior to
May 1, 2002. On and after that date, the Company may redeem the Securities in
whole at any time or in part from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest payment
date), if redeemed during the 12-month period beginning on or after May 1 of the
years set forth below:
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135
Redemption
Period Price
------ -----
2002......................................................... 105.250%
2003......................................................... 103.500%
2004......................................................... 101.750%
2005 and thereafter.......................................... 100.000%
Notwithstanding the foregoing, at any time and from time to time prior
to May 1, 2000, the Company may redeem in the aggregate up to 33 1/3% of the
original aggregate principal amount of the Securities with the proceeds of one
or more Public Equity Offerings by the Company following which there is a Public
Market, at a redemption price (expressed as a percentage of principal amount) of
110.5% plus accrued interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); provided, however, that at least 66 2/3%
of the original aggregate principal amount of the Securities must remain
outstanding after each such redemption.
At any time on or prior to May 1, 2002, the Securities may also be
redeemed as a whole at the option of the Company upon the occurrence of a Change
of Control, upon not less than 30 nor more than 60 days prior notice (but in no
event more than 180 days after the occurrence of such Change of Control) mailed
by first-class mail to each Holder's registered address, at a redemption price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the Redemption Date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date).
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued interest on all Securities (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Put Provisions
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Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions specified in the Indenture, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
purchase price in cash equal to 101% of the principal amount of the Securities
to be repurchased plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of holders of record on the relevant record
date to receive interest due on the related interest payment date) as provided
in, and subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company agrees, and each
Securityholder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give effect to such
provisions and appoints the Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15
days before a selection of Securities to be redeemed or 15 days before an
interest payment date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes, subject to the provisions for record dates with respect to
payment of interest.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
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12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the consent of the Holders of at
least a majority in principal amount outstanding of the Securities and (ii) any
default or noncompliance with any provision may be waived with the consent of
the Holders of a majority in principal amount outstanding of the Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add
Guarantees with respect to the Securities, or to secure the Securities, or to
add additional covenants or surrender rights and powers conferred on the
Company, or to provide that any Indebtedness that becomes or will become an
obligation of the Successor Company pursuant to Article 5 of the Indenture (and
that is not a Subordinated Obligation) is Senior Subordinated Indebtedness for
the purposes of the Indenture or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Securityholder.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default in any
payment of interest on any Security when due, continued for 30 days, (ii) a
default in the payment of principal of any Security when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise, whether or not such payment is prohibited by Article 10 of the
Indenture, (iii) the failure by the Company to comply with its obligations under
Section 5.1 of the Indenture, (iv) the failure by the Company to comply for 30
days after notice with certain of its obligations under Article 4 of the
Indenture (in each case, other than a failure to purchase Securities), (v) the
failure by the Company to comply for 60 days after notice with its other
agreements contained in the Securities or the Indenture, (vi) the failure by any
Note Guarantor to comply with its obligations under any Note Guarantee to which
such Note
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Guarantor is a party, after any applicable grace period, (vii) the failure by
the Company or any Significant Subsidiary to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $5.0 million or its foreign
currency equivalent (the "cross acceleration provision"), (viii) certain events
of bankruptcy, insolvency or reorganization of the Company or a Significant
Subsidiary (the "bankruptcy provisions"), (ix) the rendering of any judgment or
decree for the payment of money in an amount (net of any insurance or indemnity
payments actually received in respect thereof prior to or within 90 days from
the entry thereof, or to be received in respect thereof in the event any appeal
thereof shall be unsuccessful) in excess of $5.0 million or its foreign currency
equivalent against the Company or a Significant Subsidiary that is not
discharged, or bonded or insured by a third Person, if (A) an enforcement
proceeding thereon is commenced or (B) such judgment or decree remains
outstanding for a period of 90 days following such judgment or decree and is not
discharged, waived or stayed (the "judgment default provision") or (x) the
failure of any Note Guarantee by a Note Guarantor which is a Significant
Subsidiary to be in full force and effect (except as contemplated by the terms
thereof or of the Indenture) or the denial or disaffirmation in writing by any
such Note Guarantor of its obligations under the Indenture or any Note Guarantee
if such Default continues for 10 days. If an Event of Default (other than a
Default relating to certain events of bankruptcy, insolvency or reorganization
of the Company) occurs and is continuing , the Trustee or the Holders of at
least a majority in principal amount of the outstanding Securities may declare
the principal of and accrued but unpaid interest on all the Securities to be due
and payable immediately. Certain events of bankruptcy, insolvency, or
reorganization are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
outstanding Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if and so long as
a committee of its Trust Officers in good faith determines that withholding
notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of the Securities and may otherwise deal with and collect obligations
owed to it by the Company or its Affiliates and
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may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
or a Note Guarantor shall not have any liability for any obligations of the
Company or any Note Guarantor under the Securities, the Indenture or any Note
Guarantee or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
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TELEX COMMUNICATIONS, INC.
0000 XXXXXXX XXXXXX XXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
(000) 000-0000
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date:_______________ Your Signature:____________________________________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.6 or 4.8 of the Indenture, state the amount: $
Date:_______________ Your Signature:____________________________________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
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EXHIBIT C
Transferee Letter of Representation
Telex Communications, Inc.
Dear Sirs:
This certificate is delivered to request a transfer of $ principal amount
of the 10 1/2% Senior Subordinated Notes due 2007 (the "Securities") of Telex
Communications, Inc. (the "Company").
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rules
501(a)(1), (2), (3) and (7) under the Securities Act of 1933, as amended
(the "Securities Act")), purchasing for our own account or for the account
of such an institutional "accredited investor" at least $250,000 principal
amount of the Notes, and we are acquiring the Notes not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which
we are acting are each able to bear the economic risk of our or its
investment.
2. We understand that the Securities have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing the Securities
to offer, sell or otherwise transfer such Securities prior to the date
which is two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the
owner of such Securities (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective
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under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a
"QIB") that purchases for its own account or for the account of a QIB and
to whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of Rules 501(a)(1),
(2), (3) or (7) under the Securities Act that is purchasing for its own
account or for the account of such an institutional "accredited investor,"
in each case in a minimum principal amount of the Securities of $250,000,
or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases
to any requirement of law that the disposition of our property or the
property of such investor account or accounts be at all times within our or
their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date. If any resale or other transfer of the
Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter
from the transferee substantially in the form of this letter to the Company
and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of
Rules 501 (a)(1), (2), (3) or (7) under the Securities Act and that it is
acquiring such Securities for investment purposes and not for distribution
in violation of the Securities Act. Each purchaser acknowledges that the
Company and the Trustee reserve the right prior to the offer, sale or other
transfer prior to the Resale Termination Date of the Securities pursuant to
clause (d), (e) or (f) above to require the delivery of an opinion of
counsel, certifications or other information satisfactory to the Company
and the Trustee.
TRANSFEREE:
BY:
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EXHIBIT D
FORM OF FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of May 6, 1997, among TELEX
COMMUNICATIONS GROUP, INC. (as successor by merger to GST Acquisition Corp.
("GST")), a Delaware corporation ("Holdings"), TELEX COMMUNICATIONS, INC., a
Delaware corporation ("Telex"), and MANUFACTURERS AND TRADERS TRUST
COMPANY, a New York trust company, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, GST and the Trustee have heretofore executed and
delivered a certain indenture dated as of May 6, 1997 (the
"Indenture"), providing for the issuance of an aggregate principal
amount of $125,000,000 of 10 1/2% Senior Subordinated Notes
due 2007 of GST (the "Securities");
WHEREAS, immediately after the execution of the Indenture and
the issuance of the Securities, GST was merged with and into
Holdings, with Holdings as the surviving
corporation (the "Merger") and succeeding to the obligations of GST as
primary obligor under the Indenture and the Securities;
WHEREAS, in consideration of a capital contribution being made on
the date hereof by Holdings to Telex and the receipt of certain other
items of value, Telex has agreed to assume all the obligations
of Holdings (as successor by Merger to GST) under the Indenture and the
Securities;
WHEREAS, Section 9.1(9) of the Indenture provides that without the
consent of any holders of Securities, Holdings and the Trustee may
enter into this Supplemental Indenture, in form satisfactory to
the Trustee, for the purpose of evidencing the assumption by Telex of the
obligations of Holdings under the Indenture and the Securities;
WHEREAS, Telex and Holdings desire and have requested that the
Trustee join in the execution of this First Supplemental Indenture
for the purpose of evidencing such assumption;
WHEREAS, upon execution of this First Supplemental Indenture,
Holdings will be released and discharged from its
obligations under the Indenture and the Securities;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by Board Resolutions of the Boards
of Directors of Telex and Holdings; and
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WHEREAS, all conditions precedent and requirements necessary
to make this First Supplemental Indenture a valid and legally
binding instrument in accordance with its terms have been complied
with, performed and fulfilled and the execution and delivery hereof
have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and intending
to be legally bound hereby, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all holders of the
Securities, as follows:
ARTICLE ONE
REPRESENTATIONS OF TELEX AND HOLDINGS
Each of Telex and Holdings represents and warrants to the Trustee as
follows:
SECTION 1.1. It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
SECTION 1.2. The execution, delivery and performance by it of this
First Supplemental Indenture have been authorized and approved by all necessary
corporate action on the part of it.
ARTICLE TWO
ASSUMPTION AND AGREEMENTS
SECTION 2.1. Telex hereby expressly assumes all of the obligations of
Holdings under the Indenture and the Securities, including, but not limited to,
(i) the due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities when due, whether at maturity, by acceleration,
by optional redemption, by mandatory prepayment or otherwise, and all other
monetary obligations of Holdings under the Indenture and the Securities and (ii)
the full and punctual performance of every covenant of and all other obligations
under the Indenture on the part of Holdings to be performed or observed under
the Indenture and the Securities.
SECTION 2.2. Telex shall succeed to and be substituted for Holdings
under the Indenture and the Securities, with the same effect as if Telex had
been named as the "Company" therein.
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SECTION 2.3. The Securities shall bear (a) the name "Telex
Communications, Inc." as obligor thereunder or (b) a notation concerning the
assumption of the Indenture and the Securities by Telex.
ARTICLE THREE
RELEASE
SECTION 3.1. In connection with the assumption by Telex of all the
obligations of Holdings under the Indenture and the Securities pursuant to
Article Two hereof, Holdings is hereby released and discharged from its
obligations under the Indenture and the Securities.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.1. The Trustee accepts the modification of the Indenture
effected by this First Supplemental Indenture, but only upon the terms and
conditions set forth in the Indenture. Without limiting the generality of the
foregoing, the Trustee assumes no responsibility for the correctness of the
recitals herein contained, which shall be taken as the statements of Telex and
Holdings. The Trustee makes no representation and shall have no responsibility
as to the validity and sufficiency of this First Supplemental Indenture or the
proper authorization or the due execution hereof by Holdings and Telex.
SECTION 4.2. If and to the extent that any provision of this First
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this First Supplemental Indenture, or in the Indenture, which is
required to be included in this First Supplemental Indenture or the Indenture by
any of the provisions of Sections 310 to 317, inclusive, of the Trust Indenture
Act of 1939, as amended, such required provision shall control.
SECTION 4.3. Except as expressly amended by the First Supplemental
Indenture and hereby, the Indenture is in all respects ratified and confirmed by
the parties hereto and all the terms, conditions and provisions thereof shall
remain in full force and effect. This First supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
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SECTION 4.3. Nothing in this First Supplemental Indenture is intended
to or shall provide any rights to any parties other than those expressly
contemplated by this First Supplemental Indenture.
SECTION 4.4. Capitalized terms not otherwise defined herein shall have
the meaning set forth in the Indenture.
SECTION 4.5. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.6. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 4.7. This First Supplemental Indenture shall become effective
as of the effective time of the Merger.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
TELEX COMMUNICATIONS
GROUP, INC.
By__________________________
Name:
Title:
TELEX COMMUNICATIONS, INC.
By__________________________
Name:
Title:
MANUFACTURERS AND TRADERS
TRUST COMPANY, as Trustee
By__________________________
Name:
Title:
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EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture" or "Guarantee"), among [name of Note Guarantor] (the
"Guarantor"), [Company] (together with its successors and assigns, the
"Company"), [each other then existing Note Guarantor under the Indenture
referred to below,] and [Trustee], as Trustee under the Indenture referred to
below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of May 6, 1997 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of an
aggregate principal amount of $125.0 million of 10 1/2% Senior Subordinated
Notes due 2007 of the Company (the "Securities");
WHEREAS, Section 4.12 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantor
shall unconditionally guarantee all of the Company's obligations under the
Securities pursuant to a Note Guarantee on the terms and conditions set forth
herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company[, the other Note Guarantors] and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein
defined, except that the term "Holders" in this Guarantee shall refer to the
term "Holders" as defined in the Indenture and
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the Trustee acting on behalf or for the benefit of such holders. The words
"herein," "hereof" and "hereby" and other words of similar import used in
this Supplemental Indenture refer to this Supplemental Indenture as a whole
and not to any particular section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor hereby fully, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, jointly and
severally with each other Note Guarantor, to each Holder of the Securities (a)
the full and punctual payment when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, of principal of and interest on the
Securities and all other monetary obligations of the Company under the Indenture
and the Securities and (b) the full and punctual performance within applicable
grace periods of all other obligations of the Company under the Indenture and
the Securities (all the foregoing being hereinafter collectively called the
"Obligations"). The Guarantor further agrees (to the extent permitted by law)
that the Obligations may be extended or renewed, in whole or in part, without
notice or further assent from it, and that it will remain bound under this
Article II notwithstanding any extension or renewal of any Obligation.
To the extent permitted by applicable law, (i) the Guarantor waives
presentation to, demand of payment from and protest to the Company of any of the
Obligations and also waives notice of protest for nonpayment (ii), the Guarantor
waives notice of any default under the Securities or the Obligations and (iii)
the obligations of the Guarantor hereunder shall not be affected by (a) the
failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under the Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of the Indenture, the Securities or any other agreement; or
(d) the failure of any Holder to exercise any right or remedy against any other
Guarantor of the Obligations.
The Guarantor further agrees that its Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and, to the extent permitted by applicable law, waives any right
to require that any resort be had by any Holder to any security held for payment
of the Obligations.
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Except as otherwise provided herein or under applicable law, the
obligations of the Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the
Obligations in full), including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, to the extent permitted by
applicable law, the obligations of the Guarantor herein shall not be discharged
or impaired or otherwise affected by the failure of any Holder to assert any
claim or demand or to enforce any remedy under the Indenture, the Securities or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
the Guarantor or would otherwise operate as a discharge of the Guarantor as a
matter of law or equity.
The Guarantor further agrees that, subject to Section 2.2(b) hereof,
its Guarantee herein shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder has at law or in equity against the Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest on
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Obligation, the Guarantor hereby promises to and will, upon receipt of written
demand by the Trustee or the Holders of a majority in principal amount of the
then outstanding Securities (the "Majority Securityholders"), forthwith pay, or
cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the
unpaid principal amount of such Obligations then due and owing, (ii) accrued and
unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law) and (iii) all other monetary Obligations of the Company
to the Holders then due and owing.
The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Obligations guarantied
hereby until payment in full of all Obligations. The Guarantor further agrees
(to the extent permitted by applicable law) that, as between such Guarantor, on
the one hand, and the Holders, on the other hand, (x) the maturity of the
Obligations guarantied hereby may be accelerated for the purposes of such
Guarantor's Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such
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acceleration in respect of the Obligations guarantied hereby, and (y) in the
event of any declaration of acceleration of such Obligations, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purposes of this Section.
The Guarantor also agrees to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or the
Holders in enforcing any rights under this Section.
SECTION 2.2 Limitation on Liability; Termination, Release and
Discharge. (a) Any term or provision of this Guarantee to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guarantied
hereunder by the Guarantor shall not exceed the maximum amount that can be
hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
(b) This Guarantee shall terminate and be of no further force or
effect, and the Guarantor shall automatically and unconditionally be released
and discharged from all liabilities and obligations in respect hereof, upon (w)
payment in full of the principal amount of all outstanding Securities (whether
by payment at maturity, purchase, redemption, defeasance, retirement or other
acquisition) and all other monetary Obligations then due and owing, (x) the
merger or consolidation of the Guarantor with and into the Company or another
Note Guarantor that is the surviving Person in such merger or consolidation, or
(y) the exercise by the Company of its legal defeasance option or its covenant
defeasance option, or (z) the sale or other transfer (i) by the Guarantor of all
or substantially all of its assets or (ii) by the Company or a Restricted
Subsidiary of all of the capital stock or other equity interests in the
Guarantor held by the Company or such Restricted Subsidiary, to a Person that is
not an Affiliate of the Company; provided, however, that, in the case of this
clause (z), (1) any such sale or transfer is made in accordance with the terms
of the Indenture (including Section 4.6 thereof), and (2) all obligations of the
Guarantor under, and all of its guarantees of, and all of its pledges of assets
or other security interests which secure, any Bank Indebtedness of the Company
shall also terminate upon such release, sale or transfer (other than with
respect to any such Indebtedness that is assumed by any Person that is not an
Affiliate of the Company). Upon notice to the Trustee that any such payment,
merger, consolidation, exercise, sale or transfer has occurred or is occurring,
the Trustee shall execute all agreements and instruments confirming and
acknowledging such termination, release and discharge as may be reasonably
requested by the Guarantor, and the Trustee shall return the original Guarantee
to the Guarantor.
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ARTICLE III
Subordination
SECTION 3.1 Subordination. The Guarantor agrees, and each
Securityholder by accepting a Security agrees, that (a) the obligations of the
Guarantor under this Guarantee are subordinated in right of payment to the prior
payment in full (when due) of all existing and future Guarantor Senior
Indebtedness of the Guarantor, including without limitation any Guarantee by the
Guarantor of the Bank Indebtedness or of any Senior Indebtedness of the Company
or of any Guarantor Senior Indebtedness of any other Note Guarantor, to the
extent and in the matter provided in Article 10 of the Indenture (as if the
Guarantor were the Company for purposes of such Article 10 and all defined terms
used therein, and the Guarantor Senior Indebtedness of the Guarantor were Senior
Indebtedness), and this Guarantor is made subject to such provisions (which are
hereby incorporated herein by reference), and (b) such subordination is for the
benefit of and enforceable by the holders of Guarantor Senior Indebtedness of
the Guarantor.
ARTICLE IV
Miscellaneous
SECTION 4.1 Notices. All notices and other communications pertaining
to this Guarantee or any Security shall be in writing and shall be deemed to
have been duly given upon the receipt thereof. Such notices shall be delivered
by hand, or mailed, certified or registered mail with postage prepaid (a) if to
the Guarantor, at its address set forth below, with a copy to the Company as
provided in the Indenture for notices to the Company, and (b) if to the Holders
or the Trustee, as provided in the Indenture. The Guarantor by notice to the
Trustee may designate additional or different addresses for subsequent notices
to or communications with the Guarantor.
SECTION 4.2 Parties. Nothing expressed or mentioned in this Guarantee
is intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee and the holders of any Guarantor Senior
Indebtedness, any legal or equitable right, remedy or claim under or in respect
of this Guarantee or any provision herein contained.
SECTION 4.3 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
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SECTION 4.4 Severability Clause. In case any provision in this
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
SECTION 4.5 Waivers and Remedies. Neither a failure nor a delay on the
part of the Holders or the Trustee in exercising any right, power or privilege
under this Guarantee shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Holders and the
Trustee herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Guarantee or at
law, in equity, by statute or otherwise.
SECTION 4.6 Successors and Assigns. Subject to Section 2.2(b) hereof,
(a) this Guarantee shall be binding upon and inure to the benefit of the
Guarantor, the Trustee, any other parties hereto, the Holders and their
respective successors and assigns and (b) in the event of any transfer or
assignment of rights by any Holder, the rights and privileges conferred upon
that party in this Guarantee and in the Securities shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions of this Guarantee and the Indenture.
SECTION 4.7 Modification, etc. Subject to the provisions of, and
except as otherwise provided in, Article 9 of the Indenture (including without
limitation Section 9.1 thereof), no modification, amendment or waiver of any
provision of this Guarantee, nor the consent to any departure by the Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and consented to by the Majority Securityholders, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which it was given. No notice to or demand on the Guarantor in any case shall
entitle such Guarantor or any other guarantor to any other or further notice or
demand in the same, similar or other circumstances.
SECTION 4.8 Entire Agreement. This Guarantee is intended by the
parties to be a final expression of their agreement in respect of the subject
matter contained herein and, together with the Indenture, supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 4.9 Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and
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effect. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby. The Trustee makes no representation or
warranty as to the validity or sufficiency of this Supplemental Indenture.
SECTION 4.10 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 4.11 Headings. The headings of the Articles and the sections
in this Guarantee are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NAME OF GUARANTOR],
By:
___________________________________
Name:
Title:
Address:
[COMPANY]
By:
___________________________________
Name:
Title:
[Add signature block for any other
existing Note Guarantor]
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[TRUSTEE]
By:
___________________________________
Name:
Title:
8