EXHIBIT 4.2
EXECUTION COPY
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Eagle Family Foods, Inc.
8 3/4% Senior Subordinated Notes due 2008
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INDENTURE
Dated as of January 23, 1998
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IBJ Xxxxxxxx Bank & Trust Company,
Trustee
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Other Definitions........................................ 31
SECTION 1.03. Incorporation by Reference of
Trust Indenture Act.................................... 31
SECTION 1.04. Rules of Construction.................................... 32
ARTICLE II
The Securities
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SECTION 2.01. Amount of Securities; Issuable
in Series............................................. 33
SECTION 2.02. Form and Dating......................................... 34
SECTION 2.03. Execution and Authentication............................ 35
SECTION 2.04. Registrar and Paying Agent.............................. 36
SECTION 2.05. Paying Agent To Hold Money in Trust..................... 36
SECTION 2.06. Securityholder Lists.................................... 37
SECTION 2.07. Transfer and Exchange................................... 37
SECTION 2.08. Replacement Securities.................................. 38
SECTION 2.09. Outstanding Securities.................................. 39
SECTION 2.10. Temporary Securities.................................... 39
SECTION 2.11 Cancelation............................................. 40
SECTION 2.12 Defaulted Interest...................................... 40
SECTION 2.13 CUSIP Numbers........................................... 40
ARTICLE III
Redemption
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SECTION 3.01. Notices to Trustee...................................... 41
SECTION 3.02. Selection of Securities
To Be Redeemed........................................ 41
SECTION 3.03. Notice of Redemption.................................... 42
SECTION 3.04. Effect of Notice of Redemption.......................... 43
SECTION 3.05. Deposit of Redemption Price............................. 43
SECTION 3.06. Securities Redeemed in Part............................. 43
Contents, p. 2
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ARTICLE IV
Covenants
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SECTION 4.01. Payment of Securities................................... 43
SECTION 4.02. Reports................................................. 44
SECTION 4.03. Limitation on Indebtedness.............................. 44
SECTION 4.04. Limitation on Restricted Payments....................... 45
SECTION 4.05. Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.......................................... 51
SECTION 4.06. Limitation on Sales of Assets........................... 52
SECTION 4.07. Limitation on Transactions with
Affiliates............................................ 57
SECTION 4.08. Change of Control....................................... 58
SECTION 4.09. Compliance Certificate.................................. 60
SECTION 4.10. Further Instruments and Acts............................ 60
SECTION 4.11. Future Guarantors....................................... 61
SECTION 4.12. Limitation on Lines of Business......................... 61
SECTION 4.13. Limitation on the Sale or Issuance
of Capital Stock of Subsidiaries...................... 61
SECTION 4.14. Limitation on Subordinated Liens........................ 61
SECTION 4.15. Limitation on Sale and Leaseback
Transactions.......................................... 62
SECTION 4.16. Limitation on Layering Debt............................. 62
SECTION 4.17. Restrictions on Holdings................................ 62
ARTICLE V
Successor Company
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SECTION 5.01. Mergers, Consolidation or Sale of Assets
of the Company........................................ 63
ARTICLE VI
Defaults and Remedies
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SECTION 6.01. Events of Default....................................... 65
SECTION 6.02. Acceleration............................................ 67
SECTION 6.03. Other Remedies.......................................... 68
SECTION 6.04. Waiver of Past Defaults................................. 68
SECTION 6.05. Control by Majority..................................... 69
Contents, p. 3
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SECTION 6.06. Limitation on Suits..................................... 69
SECTION 6.07. Rights of Holders To
Receive Payment....................................... 69
SECTION 6.08. Collection Suit by Trustee.............................. 70
SECTION 6.09. Trustee May File Proofs of Claim........................ 70
SECTION 6.10. Priorities.............................................. 70
SECTION 6.11. Undertaking for Costs................................... 71
SECTION 6.12. Waiver of Stay or Extension Laws........................ 71
ARTICLE VII
Trustee
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SECTION 7.01. Duties of Trustee....................................... 71
SECTION 7.02. Rights of Trustee....................................... 73
SECTION 7.03. Individual Rights of Trustee............................ 74
SECTION 7.04. Trustee's Disclaimer.................................... 74
SECTION 7.05. Notice of Defaults...................................... 74
SECTION 7.06. Reports by Trustee to Holders........................... 74
SECTION 7.07. Compensation and Indemnity.............................. 75
SECTION 7.08. Replacement of Trustee.................................. 76
SECTION 7.09. Successor Trustee by Merger............................. 77
SECTION 7.10. Eligibility; Disqualification........................... 77
SECTION 7.11. Preferential Collection of Claims
Against Company....................................... 78
ARTICLE VIII
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities;
Defeasance............................................ 78
SECTION 8.02. Conditions to Defeasance................................ 79
SECTION 8.03. Application of Trust Money.............................. 81
SECTION 8.04. Repayment to Company.................................... 81
SECTION 8.05. Indemnity for Government Obligations.................... 82
SECTION 8.06. Reinstatement........................................... 82
Contents, p. 4
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ARTICLE IX
Amendments
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SECTION 9.01. Without Consent of Holders.............................. 82
SECTION 9.02. With Consent of Holders................................. 83
SECTION 9.03. Compliance with Trust Indenture Act..................... 85
SECTION 9.04. Revocation and Effect of Consents
and Waivers........................................... 85
SECTION 9.05. Notation on or Exchange
of Securities......................................... 85
SECTION 9.06. Trustee To Sign Amendments.............................. 86
SECTION 9.07. Payment for Consent..................................... 86
ARTICLE X
Subordination
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SECTION 10.01. Agreement To Subordinate................................ 86
SECTION 10.02. Liquidation, Dissolution, Bankruptcy.................... 87
SECTION 10.03. Default on Senior Indebtedness.......................... 87
SECTION 10.04. Acceleration of Payment of Securities................... 88
SECTION 10.05. When Payment or Distribution Must Be
Paid Over............................................. 88
SECTION 10.06. Subrogation............................................. 89
SECTION 10.07. Relative Rights......................................... 89
SECTION 10.08. Subordination May Not Be Impaired by
Company............................................... 89
SECTION 10.09. Rights of Trustee and Paying Agent...................... 89
SECTION 10.10. Payment, Distribution or Notice to
Representative........................................ 90
SECTION 10.11. Article X Not To Prevent Events
of Default or Limit
Right To Accelerate................................... 90
SECTION 10.12. Trust Moneys Not Subordinated........................... 90
SECTION 10.13. Trustee Entitled To Rely................................ 90
SECTION 10.14. Trustee To Effectuate Subordination..................... 91
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness................................... 91
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions............................................ 91
SECTION 10.17. Trustee's Compensation Not
Prejudiced.......................................... 92
Contents, p. 5
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ARTICLE XI
Note Guarantees
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SECTION 11.01. Note Guarantees......................................... 92
SECTION 11.02. Limitation on Liability; Release
of Domestic Subsidiary Guarantors..................... 95
SECTION 11.03. Successors and Assigns.................................. 96
SECTION 11.04. No Waiver............................................... 96
SECTION 11.05. Modification............................................ 96
SECTION 11.06. Execution of Supplemental Indenture
for Future Domestic Subsidiary
Guarantors............................................ 96
ARTICLE XII
Subordination of the Note Guarantees
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SECTION 12.01. Agreement To Subordinate................................ 97
SECTION 12.02. Liquidation, Dissolution, Bankruptcy.................... 97
SECTION 12.03. Default on Designated Senior
Indebtedness of a Guarantor.......................... 98
SECTION 12.04. Demand for Payment...................................... 98
SECTION 12.05. When Payment or Distribution Must Be
Paid Over............................................. 99
SECTION 12.06. Subrogation............................................. 99
SECTION 12.07. Relative Rights......................................... 99
SECTION 12.08. Subordination May Not Be Impaired
by a Guarantor........................................ 100
SECTION 12.09. Rights of Trustee and Paying Agent...................... 100
SECTION 12.10. Payment, Distribution or Notice to
Representative........................................ 100
SECTION 12.11. Article XII Not To Prevent Events
of Default or Limit Right To
Accelerate............................................ 100
SECTION 12.12. Trustee Entitled To Rely................................ 101
SECTION 12.13. Trustee To Effectuate Subordination..................... 101
SECTION 12.14. Trustee Not Fiduciary for Holders of
Senior Indebtedness of a Guarantor.................... 102
SECTION 12.15. Reliance by Holders of Senior
Indebtedness of a Guarantor on
Subordination Provisions.............................. 102
SECTION 12.16. Defeasance.............................................. 102
Contents, p. 6
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ARTICLE XIII
Miscellaneous
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SECTION 13.01. Trust Indenture Act Controls............................ 102
SECTION 13.02. Notices................................................. 102
SECTION 13.03. Communication by Holders with Other
Holders............................................... 103
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent............................................. 103
SECTION 13.05. Statements Required in Certificate or
Opinion............................................... 104
SECTION 13.06. When Securities Disregarded............................. 104
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar............................................. 105
SECTION 13.08. Legal Holidays.......................................... 105
SECTION 13.09. Governing Law........................................... 105
SECTION 13.10. No Recourse Against Others.............................. 105
SECTION 13.11. Successors.............................................. 105
SECTION 13.12. Multiple Originals...................................... 105
SECTION 13.13. Table of Contents; Headings............................. 105
Appendix A Provisions Relating to Original Securities,
Additional Securities, Private Exchange
Securities and Exchange Securities
Exhibit A Form of Initial Security
Exhibit B Form of Exchange Security
Exhibit C Form of Supplemental Indenture
Exhibit D Form of Letter of Representation
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) ............................. 7.10
(a)(2) ............................. 7.10
(a)(3) ............................. N.A.
(a)(4) ............................. N.A.
(b) ............................. 7.08; 7.10
(c) ............................. N.A.
311(a) ............................. 7.11
(b) ............................. 7.11
(c) ............................. N.A.
312(a) ............................. 2.06
(b) ............................. 13.03
(c) ............................. 13.03
313(a) ............................. 7.06
(b)(1) ............................. N.A.
(b)(2) ............................. 7.06
(c) ............................. 13.02
(d) ............................. 7.06
314(a) ............................. 4.02; 4.09
(b) ............................. N.A.
(c)(1) ............................. 13.04
(c)(2) ............................. 13.04
(c)(3) ............................. N.A.
(d) ............................. N.A.
(e) ............................. 13.05
(f) ............................. 4.10
315(a) ............................. 7.01; 7.02
(b) ............................. 7.05
(c) ............................. 7.01
(d) ............................. 7.01
(e) ............................. 6.11
316(a)(last
sentence) ............................. 13.06
(a)(1)(A) ............................. 6.05
(a)(1)(B) ............................. 6.04
(a)(2) ............................. N.A.
(b) ............................. 6.07
317(a)(1) ............................. 6.08
(a)(2) ............................. 6.09
(b) ............................. 2.05
318(a) ............................. 13.01
N.A. means Not Applicable.
_____________________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
INDENTURE dated as of January 23, 1998, among EAGLE FAMILY
FOODS, INC., a Delaware corporation (the "Company"), EAGLE FAMILY
FOODS HOLDINGS, INC., a Delaware corporation, as a guarantor
("Holdings" or the "Initial Guarantor"), and IBJ XXXXXXXX BANK &
TRUST COMPANY, a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (i) the Company's 8 3/4%
Senior Subordinated Notes due 2008 issued on the Closing Date (such term and
each other capitalized term used but not defined in this introduction having the
meaning assigned thereto in Article I) (the "Original Securities"), (ii) any
Additional Securities that may be issued on any other Issue Date (all such
Securities in clauses (i) and (ii) being referred to herein collectively as the
"Initial Securities"), (iii) if and when issued as provided in an Exchange and
Registration Rights Agreement, the Company's 8 3/4% Senior Subordinated Notes
due 2008 in exchange for any Initial Securities (the "Exchange Securities") and
(iv) if and when issued as provided in an Exchange and Registration Rights
Agreement, the Private Exchange Securities issued in a Private Exchange Offer
(the "Private Exchange Securities", and together with the Initial Securities and
any Exchange Securities issued hereunder, the "Securities"). Except as
otherwise provided herein, the Securities will be limited to $265,000,000 in
aggregate principal amount outstanding, of which $115,000,000 in aggregate
principal amount will be initially issued on the Closing Date. Subject to the
conditions set forth herein, the Company may issue up to $150,000,000 aggregate
principal amount of Additional Securities.
ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Acquired Indebtedness" means, with respect to any specified Person,
(i) any Indebtedness of any other Person existing at the time such other Person
is merged with or into, or becomes a Subsidiary of, such specified Person,
including, without limitation, Indebtedness Incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such
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specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Additional Securities" means up to $150,000,000 in aggregate
principal amount of the Company's 8 3/4% Senior Subordinated Note due 2008
initially issued subsequent to the Closing Date pursuant to Article II and in
compliance with Section 4.03.
"Affiliate" of any specified Person means (i) any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any other Person who is a
director or executive officer of (a) such specified Person or (b) any Person
described in the preceding clause (i). For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of any class, or any series of
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any class, of equity securities of a Person, whether or not voting, shall be
deemed to be control.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer, that does not constitute a Restricted
Payment or an Investment, by such Person of any of its property or assets
(including without limitation, by way of a Sale and Leaseback Transaction and
including the issuance, sale or other transfer of any Capital Stock in any
Subsidiary (including any Intellectual Property Subsidiary) of such Person or
the sale or other transfer of Capital Stock in any Unrestricted Subsidiary of
such Person (including the receipt of proceeds of insurance paid on account of
the loss of or damage to any asset and awards of compensation for any asset
taken by condemnation, eminent domain or similar proceeding, and including the
receipt of proceeds of business interruption insurance), in each case in one or
a series of related transactions; provided that, notwithstanding the foregoing,
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the term "Asset Sale" shall not include: (a) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of the
Company as permitted pursuant to Section 5.01, (b) the sale or lease of
inventory and obsolete equipment or personal property no longer useful in the
business of such Person, in each case in the ordinary course of business,
3
(c) a transfer of assets by any Person to the Company, an Intellectual Property
Subsidiary or a Wholly Owned Subsidiary of the Company, (d) an issuance of
Capital Stock by any Person to the Company or to a Wholly Owned Subsidiary of
the Company, (e) the sale or other disposition of cash or Cash Equivalents, (f)
the issuance by the Company of shares of its Capital Stock, (g) the licensing of
intellectual property in the ordinary course of business or (h) Asset Swaps
permitted pursuant to Section 4.06(d).
"Asset Swap" means the substantially concurrent purchase and sale, or
exchange, of Productive Assets between the Company and another Person or group
of affiliated Persons (which Person or group of affiliated Persons is not
affiliated with the Company) pursuant to an Asset Swap Agreement.
"Asset Swap Agreement" means a definitive agreement, subject only to
customary closing conditions that the Company in good faith believes will be
satisfied, providing for an Asset Swap; provided, however, that any amendment
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to, or waiver of, any closing condition that individually or in the aggregate is
material to such Asset Swap shall be deemed to be a new Asset Swap Agreement.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Leaseback Transaction (including any period for
which such lease has been extended).
"Board" means the board of directors of the Company.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any
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Preferred Stock, but excluding any debt securities convertible or exchangeable
into such equity.
"Cash Equivalent" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities not more than twelve
months from the date of acquisition, (b) U.S. dollar denominated (or foreign
currency fully hedged) time deposits, certificates of deposit, Eurodollar time
deposits or Eurodollar certificates of deposit of (i) any commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or (ii)
any bank whose short-term commercial paper rating from Standard and Poor's
Rating Group is at least A-1 or the equivalent thereof or from Xxxxx'x Investors
Service, Inc. is at least P-1 or the equivalent thereof (any such bank being an
"Approved Lender"), in each case with maturities of not more than twelve months
from the date of acquisition, (c) commercial paper issued by any Approved Lender
(or by the parent company thereof), (d) repurchase obligations of any lender
under the Senior Credit Facilities (as in effect on the Closing Date) or any
Approved Lender and (e) any shares of money market mutual or similar funds
having assets in excess of $500,000,000 or which invest exclusively in the
assets satisfying the requirements of clauses (a) through (d) of this
definition.
"Change of Control" means such time as:
(i) prior to the initial Public Equity Offering by the Company or
Holdings of its common stock, (a) Holdings ceases to be, directly or
indirectly, the beneficial owner of 100% of the voting power of the Voting
Stock of the Company (unless the Company has merged with or into Holdings
in compliance with Section 5.01 or (b) the Initial Shareholders cease to
be, directly or indirectly, the beneficial owners, in the aggregate, of
more than 50% of the voting power of the Voting Stock of the Company and of
Holdings, in each case on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options any other
securities of the Company or Holdings, as the case may be, convertible into
or exercisable for Voting Stock of the Company or Holdings, as the case may
be (whether or not such securities are then currently convertible or
exercisable); or
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(ii) after the initial Public Equity Offering by the Company or
Holdings of its common stock, (a) any "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) (other than one or
more of the Initial Shareholders) becomes, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of
all shares that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), by way of
merger, consolidation or otherwise, of 35% or more of the voting power of
the Voting Stock of the Company or Holdings on a fully-diluted basis, after
giving effect to the conversion and exercise of all outstanding warrants,
options and other securities of the Company or Holdings, as the case may
be, convertible into or exercisable for Voting Stock of the Company or
Holdings, as the case may be, (whether or not such securities are then
currently convertible or exercisable) and (b) such person or group is or
becomes, directly or indirectly, the beneficial owner of a greater
percentage of the voting power of the Voting Stock of the Company or
Holdings, as the case may be, calculated on such fully diluted basis, than
the percentage beneficially owned by the Initial Shareholders; or
(iii) the Company or Holdings merges with or into another Person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person merges with or
into the Company or Holdings, in any such event pursuant to a transaction
in which the outstanding Voting Stock of the Company or Holdings, as the
case may be, is converted into or exchanged for cash, securities or other
property, other than any such transaction where (x) the outstanding Voting
Stock of the Company or Holdings, as the case may be, is converted into or
exchanged for (1) Voting Stock (other than Redeemable Stock) of the
surviving or transferee corporation and/or (2) cash, securities and other
property in an amount which could be paid by the Company as a Restricted
Payment under this Indenture and (y) immediately after such transaction no
"person" or "group" (within the meaning of Sections 13(d) and 14(d) of the
Exchange Act) (other than one or more of the Initial Shareholders) is the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have
6
"beneficial ownership" of all shares that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of (1) 35% or more of the voting
power of the Voting Stock of the surviving or transferee corporation on a
fully diluted basis, after giving effect to the conversion and exercise of
all outstanding warrants, options and other securities of such surviving or
transferee corporation convertible into or exercisable for Voting Stock of
such surviving or transferee corporation (whether or not such securities
are then currently convertible or exercisable) and (2) a greater percentage
of the voting power of the Voting Stock of such surviving or transferee
corporation calculated on such fully diluted basis, than the percentage
beneficially owned by the Initial Shareholders; or
(iv) during any period of two consecutive calendar years, individuals
who at the beginning of such period constituted the Board or the board of
directors of Holdings, together with any new members of such Board or board
of directors (a) whose election by such Board or board of directors or
whose nomination for election by the stockholders of the Company or
Holdings, as the case may be, was approved by a vote of a majority of the
members of such Board or board of directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved or (b) elected by the
Initial Shareholders, cease for any reason to constitute a majority of the
directors of the Company or Holdings, as the case may be, then in office.
"Closing Date" means January 23, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it in accordance with the terms of this Indenture and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
"Consolidated Interest Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four
7
consecutive fiscal quarters ending at least 45 days prior to the date of such
determination to (ii) the sum of (a) Consolidated Interest Expense for such four
fiscal quarters plus (b) all cash preferred dividends (tax effected) for such
period; provided, however, that:
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(a) if the Company or any Subsidiary of the Company (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 Interest 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 and the application of the proceeds thereof as if such
Indebtedness had been Incurred and the proceeds thereof applied on the
first day of such period or (y) has repaid, repurchased, defeased or
otherwise discharged any Indebtedness since the 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 Interest
Coverage Ratio involves a discharge of Indebtedness, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving effect to such discharge of such Indebtedness, including application
of the proceeds of such new Indebtedness, as if such defeasance, repayment,
repurchase or discharge had occurred on the first day of such period
(except that, in making such computation, the amount of Indebtedness under
the Revolving Credit Facility or other revolving credit facility shall be
computed based upon the average daily balance of such Indebtedness during
such four-quarter period);
(b) if since the beginning of such period the Company or any of its
Subsidiaries shall have disposed of any company or any business or any
group of assets constituting an operating unit (a "Disposal"), 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
Disposal 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 of its Subsidiaries repaid, repurchased, defeased or
otherwise
8
discharged with respect to the Company and its continuing Subsidiaries in
connection with such Disposal for such period (or, if the Capital Stock of
any Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Subsidiary to the extent
the Company and its continuing Subsidiaries are no longer liable for such
Indebtedness after such sale);
(c) if since the beginning of such period the Company or any
Subsidiary of the Company (by merger or otherwise) shall have acquired any
company or any business or any group of assets constituting an operating
unit (an "Acquisition"), 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 Acquisition occurred on the
first day of such period; and
(d) if since the beginning of such period any Person (that
subsequently became a Subsidiary of the Company or was merged with or into
the Company or any Subsidiary of the Company since the beginning of such
period) shall have made any Disposal or Acquisition that would have
required an adjustment pursuant to clause (b) or (c) above if made by the
Company or a Subsidiary of the Company during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto as if such Disposal or Acquisition occurred
on the first day of such period.
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 Hedging
Obligations applicable to such Indebtedness if such Hedging Obligations have a
remaining term as at the date of determination in excess of twelve months). If
any Indebtedness bears, at the option of the Company or a Subsidiary of the
Company, 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, either a fixed or floating rate. If any
Indebtedness that is being given pro forma effect was Incurred under the
Revolving Credit Facility or any other revolving credit facility, the interest
expense on such Indebtedness shall be computed based upon the average
9
daily balance of such Indebtedness during the applicable period.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Subsidiaries as determined
in accordance with GAAP, plus, to the extent not included in such interest, (i)
the interest component of Capital Lease Obligations and Attributable Debt,
whether paid or accrued, (ii) amortization of debt discount, (iii) non-cash
interest expense, (iv) accrued interest, (v) interest actually paid by the
Company or any such Subsidiary under any Guarantee of Indebtedness or other
obligation of any other Person, (vi) net costs associated with Hedging
Obligations, (vii) the interest portion of any deferred obligation, (viii)
Preferred Stock dividends in respect of all Preferred Stock (including
Redeemable Stock) of Subsidiaries of the Company and Redeemable Stock of the
Company held by Persons other than the Company or a Wholly Owned Subsidiary of
the Company and (ix) 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 or fees to any Person (other than the Company) in connection
with Indebtedness Incurred by such plan or trust; provided, however, that there
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shall be excluded therefrom (y) any such interest expense in respect of
Qualified Subordinated Indebtedness and (z) any such interest expense of any
Unrestricted Subsidiary of the Company to the extent the related Indebtedness is
not Guaranteed or paid by the Company or any Subsidiary of the Company.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
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Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net
Income (but not loss) of any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that Net Income is not at the date of determination permitted without any
prior governmental approval (which has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders, (iii) the Net Income (if
10
positive) of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded, (iv) the
cumulative effect of a change in accounting principles shall be excluded and (v)
the Net Income of, or any dividends or other distributions from, any
Unrestricted Subsidiary of the Company, to the extent otherwise included, shall
be excluded, until distributed in cash to the Company or one of its Subsidiaries
and provided further that, for the purposes of clause (i), Net Income of any
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such entity shall be calculated in the same manner that Net Income of the
Company is calculated. Notwithstanding the foregoing, for the purposes of
Section 4.04 only, there shall be excluded from Consolidated Net Income any
payments of interest on Indebtedness, dividends, repayments of principal of
loans or advances, or other transfers of assets, from Unrestricted Subsidiaries
to the Company or any of its Subsidiaries to the extent such payments,
dividends, repayments, advances or transfers increase the amount of Restricted
Payments permitted under Section 4.04(a)(3)(C).
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, as of the end of the most recent fiscal quarter
of the Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (A) any accumulated deficit and (B) any amounts
attributable to Redeemable Stock of the Company.
"Consolidated Non-Cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization and other non-cash charges of such
Person and its consolidated Subsidiaries for such period, on a consolidated
basis, as determined in accordance with GAAP (excluding any non-cash charge that
requires or represents an accrual or reserve for cash charges for any future
period, other than accruals for future retiree medical obligations made pursuant
to SFAS Xx. 00, Xx. 000 and No. 116, as amended or modified).
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values to or
11
under which the Company or any of its Subsidiaries is a party or a beneficiary.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Designated Senior Indebtedness" means, with respect to any Person,
(i) so long as the Senior Credit Facilities are outstanding, Indebtedness of
such Person under the Senior Credit Facilities and (ii) thereafter, any other
Senior Indebtedness of such Person permitted under this Indenture the principal
amount of which is $25,000,000 or more and that has been designated by such
Person as "Designated Senior Indebtedness."
"Domestic Subsidiary" means any direct or indirect Subsidiary of the
Company that is organized and existing under the laws of the United States, any
state thereof or the District of Columbia, but shall not include any
Intellectual Property Subsidiary unless such Intellectual Property Subsidiary is
a Wholly Owned Subsidiary of the Company.
"Domestic Subsidiary Guarantee" means any Note Guarantee provided by
any Domestic Subsidiary of the Company pursuant to Section 4.11.
"EBITDA" for any period means the sum of Consolidated Net Income,
income tax expense, Consolidated Interest Expense and Consolidated Non-Cash
Charges deducted in computing Consolidated Net Income, without duplication, in
each case for such period, of such Person and its consolidated Subsidiaries on a
consolidated basis, all determined in accordance with GAAP.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange and Registration Rights Agreement" means (i) the Exchange
and Registration Rights Agreement, dated as of the Closing Date, among the
Company, Holdings and the Initial Purchasers and (ii) any other similar exchange
and registration rights agreement relating to Additional Securities.
"Exchange Offer" means a registered exchange offer for Initial
Securities undertaken by the Company pursuant to an Exchange and Registration
Rights Agreement.
12
"Exchange Securities" means, collectively, debt securities of the
Company that are identical in all material respects to the Initial Securities,
except for the transfer restrictions relating to the Initial Securities, issued
in a like aggregate principal amount of the Initial Securities pursuant to an
Exchange and Registration Rights Agreement.
"Exempt Affiliate Transactions" means (a) transactions between or
among the Company and/or its Wholly Owned Subsidiaries, (b) loans or advances to
employees and officers of the Company or any Subsidiary of the Company in the
ordinary course of business to provide for the payment of reasonable expenses
incurred by such persons in the performance of their responsibilities to the
Company or such Subsidiary or in connection with any relocation, (c) fees,
compensation or employee benefit arrangements paid to and indemnity provided on
behalf of directors, officers or employees of the Company or any Subsidiary of
the Company in the ordinary course of business, (d) any employment agreement
(including customary benefits thereunder) that is in effect on the Closing Date
in the ordinary course of business and any such agreement entered into by the
Company or a Subsidiary of the Company after the Closing Date in the ordinary
course of business of the Company or such Subsidiary, (e) any Restricted Payment
that is not prohibited by Section 4.04 and (f) transactions pursuant to
agreements in effect on the Closing Date, including amendments thereto entered
into after such date; provided that the terms of any such amendment are not, in
--------
the aggregate, less favorable to the Company than the terms of such agreement
prior to such amendment and provided further that such agreements are set forth
-------- -------
in a schedule to this Indenture.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Senior Credit Facilities) in
existence on the Closing Date, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset or property, the
price that could be negotiated in an arms'-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"Foreign Subsidiary" means any Subsidiary of the Company that is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of
13
the Accounting Principles Board of American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect on the Closing Date.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness 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 other obligation of such other Person
(whether arising by agreement 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 to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term "Guarantee" shall not
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include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb shall have a correlative meaning.
"Guarantors" means the Initial Guarantor and any other Domestic
Subsidiary of the Company that executes a supplemental indenture hereto pursuant
to Section 4.11, and their respective successors and assigns, in each case until
released from the applicable Note Guarantee in accordance with the terms of this
Indenture.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Holdings" means the party identified as such in this Indenture until
a successor replaces it in accordance with the terms of this Indenture and,
thereafter, means the successor.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any
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14
Indebtedness or Capital Stock of 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; provided that neither the accrual of interest nor the
--------
accretion of original issue discount shall be considered an Incurrence of
Indebtedness. The terms "Incurred," "Incurrence" and "Incurring" shall each have
a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal (accreted value in the case of Indebtedness
Incurred with original issue discount) of and premium (if any) in respect
of indebtedness of such Person for borrowed money;
(ii) the principal (accreted value in the case of Indebtedness
Incurred with original issue discount) of and premium (if any) in respect
of obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(iii) all Capital Lease Obligations and Attributable Debt of such
Person;
(iv) all obligations of such person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(v) all reimbursement obligations of such Person in respect of
letters of credit, bankers' acceptances or other similar instruments or
credit transactions, other than obligations with respect to letters of
credit securing obligations (other than obligations described in clauses
(i) through (iv) of this definition) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn
upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third Business Day following receipt by such Person of a
demand for reimbursement following payment on the letter of credit;
(vi) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Redeemable Stock of
such Person or any Redeemable Stock of such Person's Subsidiaries (but
excluding, in each case, any accrued dividends);
15
(vii) the amount of Preferred Stock of such Person's Subsidiaries
(but excluding any unaccrued dividends);
(viii) 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 if such Indebtedness is not assumed by such
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Person, the amount of such Indebtedness shall be the lesser of (a) the Fair
Market Value (as determined by the board of directors of such Person, whose
determination shall be conclusive if made in good faith and evidenced by a
resolution of such board of directors) of such asset at such date of
determination and (b) the amount of such Indebtedness of such other Person;
(ix) all Indebtedness of other Persons to the extent Guaranteed by
such Person; and
(x) to the extent not otherwise included in this definition, net
obligations in respect of Hedging Obligations.
For purposes of this definition, the maximum fixed redemption,
repayment or repurchase price of any Redeemable Stock that does not have a fixed
redemption, repayment or repurchase price shall be calculated in accordance with
the terms of such Redeemable Stock as if such Redeemable Stock were redeemed,
repaid or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such
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Redeemable Stock is not then permitted to be redeemed, repaid or repurchased,
the redemption, repayment or repurchase price shall be the book value of such
Redeemable Stock as reflected in the most recent financial statements of such
Person. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended from time to time.
"Independent Director" means a director of the Company other than a
director who is a party, or who is a director, officer, employee or Affiliate
(or is related by blood or marriage to any such person) of the other party, to
16
the transaction in question, and who is, in fact, independent in respect of such
transaction.
"Independent Financial Advisor" means a reputable accounting,
appraisal or nationally recognized investment banking or consulting firm that
is, in the reasonable judgment of the Board, qualified to perform the task for
which such firm has been engaged and disinterested and independent with respect
to the Company.
"Initial Purchasers" means, collectively, Chase Securities Inc. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"Initial Shareholders" means the Sponsors and Management Shareholders.
"Intellectual Property Subsidiary" means any Subsidiary of the Company
(i) substantially all the assets of which are comprised of patents, trademarks,
copyrights and other intellectual property, (ii) that is engaged solely in the
business of owning such assets (prior to any sale, lease, conveyance,
disposition of or other transfer of any of such assets to any Person in
accordance with the terms of this Indenture) and licensing such assets to the
Company pursuant to a license agreement or other agreement or arrangement
relating to licensing fees, royalty payments or similar fees or payments that
does not require the payment of any fees or the making of any payments by the
Company to such Intellectual Property Subsidiary in any year in excess of 10% of
the gross revenues for such year attributable to the sales of products using the
patents, trademarks, copyrights or other intellectual property that is the
subject of such agreement or arrangement and other activities incidental
thereto, (iii) contains in its charter, partnership agreement, operating
agreement or other constituent or governing document (A) a provision granting
the Company or any Wholly Owned Subsidiary of the Company control over the
management (including the sale, lease, conveyance disposition of or other
transfer of any of the properties or assets) of such Subsidiary, (B) a
prohibition against the making of any distribution by such Subsidiary to any
Person other than the Company or any Wholly Owned Subsidiary of the Company with
respect to any year (other than in connection with the sale, lease, conveyance,
disposition of or other transfer of any assets of such Subsidiary to any Person
in accordance with the terms of this Indenture) in an amount in excess of 10% of
the difference (if positive) between the revenue of such Subsidiary for such
year and the operating expenses of such
17
Subsidiary for such year and (C) a provision requiring that all proceeds derived
from the issuance, sale or other transfer of any shares of Capital Stock by such
Subsidiary be distributed to the Company promptly upon receipt thereof and (iv)
that does not Incur Indebtedness and that does not Incur any other obligation
other than as permitted under clause (ii) above.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person (including an Affiliate) in the form of a direct or
indirect loan (including a Guarantee of Indebtedness or other Obligation),
advance or other extension of credit or capital contribution (by means of any
transfer of cash or other property) (excluding an advance to any officer or
employee of the type specified in clause (b) of the definition of Exempt
Affiliate Transactions and accounts receivable and other extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices), purchase or other acquisition for consideration or ownership of
Indebtedness, Capital Stock or other security issued or owned by any other
Person and any other item that is or would be classified as an investment on a
balance sheet prepared in accordance with GAAP; provided that an acquisition of
--------
assets, Capital Stock or other securities by the Company for consideration
consisting of common equity securities of the Company shall not be deemed to be
an Investment.
"Issue Date" means the date on which any Initial Securities are
originally issued.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Management Shareholder" means an officer, director or employee of the
Company or any Subsidiary of the Company who is the beneficial owner of any
Capital Stock of the Company or of Holdings.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person for such
18
period, determined in accordance with GAAP and before any reduction in respect
of preferred stock dividends, excluding, however, (i) any gain (but not loss),
together with any related provision for taxes on such gain (but not loss),
realized in connection with (a) any Asset Sale (including, without limitation,
any dispositions pursuant to a Sale and Leaseback Transaction) or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries,
(ii) any extraordinary gain or loss, together with any related provision for
taxes on such extraordinary gain or loss, (iii) any gains (but not losses) from
currency exchange transactions not in the ordinary course of business consistent
with past practice and (iv) with respect to the Company, (a) cash restructuring
charges or writeoffs recorded within the one-year period following the Closing
Date in an aggregate amount not to exceed $5,000,000 and (b) other such non-cash
restructuring charges or writeoffs recorded within such one-year period
(excluding any non-cash charge that requires or represents an accrual or reserve
for cash charges for any future period).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
noncash consideration received in any Asset Sale but only as and when received)
net of (i) the amount of cash applied to repay or defease Indebtedness secured
by the asset involved in such Asset Sale, (ii) the direct costs and expenses
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions), (iii) any relocation
expenses incurred as a result thereof, (iv) taxes (including income taxes and
taxes payable upon payment or other distribution of funds from a Foreign
Subsidiary to the Company or another Subsidiary of the Company) paid or payable
as a result thereof, (v) any reserve for adjustment in respect of the sale price
of such asset or assets established in accordance with GAAP, (vi) a reasonable
reserve for the after-tax cost of any indemnification payments (fixed or
contingent) attributable to the seller's indemnities to purchaser in respect of
such Asset Sale undertaken by the Company or any of its Subsidiaries in
connection with such Asset Sale and (vii) if such Person is a Subsidiary of the
Company, any dividends or distributions payable to holders of minority interests
in such Subsidiary from the proceeds of such Asset Sale.
19
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary of the Company) would
permit (upon notice, lapse of time or both) any holder of any other Indebtedness
of the Company or any of its Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Note Guarantee" means each unconditional Guarantee, on a senior
subordinated and unsecured basis, of the obligations with respect to the
Securities issued by a Guarantor. Each Note Guarantee entered after the Closing
Date shall be evidenced by delivery of a supplemental indenture substantially in
the form of Exhibit C hereto.
"Obligations" means any principal, interest, special interest,
penalties, premiums, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company or of a Guarantor, as applicable.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers of the Company, and, with respect to a
Guarantor, a certificate signed by two Officers of such Guarantor.
"Opinion of Counsel" means a written opinion from
legal counsel who and which is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company.
"pari passu," as applied to the ranking of any Indebtedness of a
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Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
subordinate in right of
20
payment to each other or to any Indebtedness as to which the other is not so
subordinate.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company under the Senior Credit Facilities
(and of any future Domestic Subsidiaries under the Domestic Subsidiary
Guarantees), or any refinancing thereof, in an aggregate principal amount
at any time outstanding (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company
and its Subsidiaries thereunder) not to exceed $265,000,000, less the
aggregate amount of all Net Proceeds of Asset Sales applied to permanently
reduce the outstanding amount or the commitments with respect to such
Indebtedness pursuant to Section 4.06;
(ii) the Existing Indebtedness of the Company;
(iii) the Indebtedness of the Company under the Securities (other
than any Additional Securities) and of any future Domestic Subsidiaries
under the Domestic Subsidiary Guarantees;
(iv) Indebtedness (including Acquired Indebtedness) of the Company
or any of its Subsidiaries represented by Capital Lease Obligations,
mortgage financings or Purchase Money Obligations, in each case Incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property used in the business of the
Company or such Subsidiary or any Refinancing Indebtedness thereof
(provided that the requirements of clause (ii) of the definition of
Refinancing Indebtedness need not be met for the purposes of this clause
(iv)), in an aggregate principal amount not to exceed $20,000,000 at any
time outstanding;
(v) Refinancing Indebtedness of the Company or any of its
Subsidiaries;
(vi) Indebtedness of the Company owing to and held by any of its
Wholly Owned Subsidiaries or Indebtedness of a Subsidiary of the Company
owing to and held by the Company and any of its Wholly Owned Subsidiaries;
provided, however, that (i) any subsequent issuance or transfer of Capital
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Stock that results in any such Indebtedness being held by a Person other
than a Wholly Owned Subsidiary of the Company and (ii) any sale or
21
other transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Subsidiary of the Company shall be deemed, in
each case, to constitute an Incurrence of such Indebtedness by the Company
or such Subsidiary, as the case may be;
(vii) (a) Hedging Obligations that are Incurred by the Company or any
of its Subsidiaries for the purpose of fixing or hedging interest rate risk
with respect to any floating rate Indebtedness that is permitted by this
Indenture to be Incurred, (b) Indebtedness for letters of credit relating
to workers' compensation claims and self-insurance or similar requirements
in the ordinary course of business, (c) Indebtedness in respect of
performance, surety or appeal bonds in the ordinary course of business and
(d) Indebtedness in respect of any Currency Agreement;
(viii) Indebtedness of the Company to the extent the proceeds thereof
are immediately used after the Incurrence thereof to purchase Securities
tendered in an offer to purchase made as a result of a Change of Control;
(ix) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations (or
from Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any Subsidiary of the Company
pursuant to such agreements), in any case Incurred in connection with the
disposition of any business, assets or Subsidiary of the Company (other
than Guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition), in a principal amount not to exceed the gross proceeds
actually received by the Company or any Subsidiary of the Company in
connection with such disposition;
(x) Qualified Subordinated Indebtedness of the Company or a
Domestic Subsidiary;
(xi) Indebtedness of Foreign Subsidiaries in an amount not at any
time exceeding $10,000,000; and
(xii) Indebtedness of the Company and its Subsidiaries (in addition
to Indebtedness permitted by any other clause of this paragraph) in an
aggregate
22
principal amount at any time outstanding not to exceed $20,000,000.
"Permitted Investments" means (a) any Investments in the Company; (b)
any Investments in Cash Equivalents; (c) Investments made as a result of the
receipt of noncash consideration from an Asset Sale that was made pursuant to
and in compliance with Section 4.06; (d) Investments outstanding as of the
Closing Date; (e) Investments in property or assets to be used in (or in
Subsidiaries and any entity that, as a result of such Investment, is a
Subsidiary engaged in) the same or a similar line of business as the Company or
any of its Subsidiaries was engaged in on the Closing Date or any reasonable
extensions or expansions thereof and Investments in the form of any purchase or
other acquisition for consideration or ownership of additional Capital Stock of
any of the Subsidiaries of the Company permitted under this Indenture; (f)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses in accordance with
GAAP; (g) loans or advances to employees made in the ordinary course of business
that do not in the aggregate exceed $10,000,000 at any time outstanding; (h)
accounts receivables and other extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices; (i) Investments in
any broker or customer; provided that the aggregate amount of such Investments
--------
in all brokers and customers shall not at any time exceed $5,000,000; (j)
Investments in dealers or customers received as distributions on debt claims
under a plan or plans of reorganization in any bankruptcy proceeding filed by or
against any dealer or customer under Chapter 11 of Title 11 of the United States
Code; provided that the Company liquidates such Investments as soon as
--------
practicable; and (k) Investments in Indebtedness incurred by the Company or any
Subsidiary of the Company in compliance with Section 4.03. The term "Permitted
Investments" shall not include the purchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of any Intellectual Property
Subsidiary that are not owned by the Company.
"Permitted Liens" means Liens securing Indebtedness of a Person
existing at the time that such Person is merged into or consolidated with the
Company or a Subsidiary of the Company or its assets are acquired by such
Person; provided that such Liens were not created in contemplation of such
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merger or consolidation or purchase and do not extend to any assets of the
Company or any Subsidiary of the Company, other than the surviving person and
its Subsidiaries or such assets.
23
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock 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.
"Private Exchange Securities" means, collectively, debt securities of
the Company that are identical in all material respects to Exchange Securities,
except for the transfer restrictions relating to such Private Exchange
Securities, issued by the Company (under the same indenture as the Exchange
Securities) simultaneously with the delivery of the Exchange Securities in an
Exchange Offer, to any Holder that holds any Initial Securities acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or to any Holder that is not
entitled to participate in an Exchange Offer, upon the request of any such
Holder, in exchange for a like aggregate principal amount of Initial Securities
held by such Holder.
"Productive Assets" means assets of a kind used or usable by the
Company and its Subsidiaries in the Company's business or any Related Business.
"Public Equity Offering" means an underwritten primary public offering
of the common stock of the Company or of the common stock of Holdings pursuant
to an effective registration statement filed with the SEC in accordance with the
Securities Act (whether alone or in conjunction with a secondary public
offering).
"Purchase Money Obligations" of any Person means any obligations of
such Person to any seller or any other Person Incurred or assumed to finance the
construction and/or acquisition of real or personal property to be used in the
business of such Person or any of its Subsidiaries in
24
an amount that is not more than 100% of the cost of such property, and Incurred
in contemplation of, or within 180 days after, the date of such acquisition
(excluding accounts payable to trade creditors Incurred in the ordinary course
of business).
"Qualified Subordinated Indebtedness" means Subordinated Indebtedness
owing to an Initial Shareholder or any Affiliate of any Initial Shareholder (or,
in the case of Qualified Subordinated Indebtedness issued by the Company to
purchase, redeem or otherwise acquire or retire for value any shares of Capital
Stock of any Intellectual Property Subsidiary, to any other Person) that (i)
does not require or permit any payment for any reason upon or in respect
thereof, whether principal, interest or otherwise, prior to the Stated Maturity
thereof, except in additional Qualified Subordinated Indebtedness, (ii) does not
permit any acceleration thereof at any time prior to the date that is 365 days
after the payment in full in cash of the Securities, (iii) has a Stated Maturity
that is not earlier than the fifth anniversary of the Stated Maturity of the
Securities, (iv) does not contain any affirmative, negative, financial or
operating covenants and (v) is expressly subordinated in right of payment to all
other Indebtedness of the Company on substantially the same terms that it is
subordinated in right of payment to the Securities.
"Redeemable Stock" means with respect to any Person, Capital Stock of
such Person that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(unless any redemption or repurchase of such Capital Stock thereupon is required
by any such terms, but only to the extent that a payment in respect thereof
would be permitted under Section 4.04, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder thereof, in whole or in part, on or prior to the date which is one
year after the date on which the Securities mature.
"Refinancing Indebtedness" means any Indebtedness of the Company or
any of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund other Indebtedness
of the Company or any of its Subsidiaries; provided that: (i) the principal
--------
amount of such Refinancing Indebtedness does not exceed the principal amount of
the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses and penalties and premiums
incurred in connection
25
therewith); (ii) such Refinancing Indebtedness has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) such Refinancing Indebtedness ranks in right of payment to the
Securities at least to the same extent as the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is Incurred either by the Company or by the Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Registration Default" means (i) the failure of the Company to file
with the SEC the applicable registration statement as required by an Exchange
and Registration Rights Agreement, (ii) the failure of the registration
statement prepared in connection with an Exchange Offer or any shelf
registration statement relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time to be declared effective as
required by an Exchange and Registration Rights Agreement, (iii) the failure to
consummate an Exchange Offer as required by an Exchange and Registration Rights
Agreement or (iv) the failure of any shelf registration statement relating to
the offer and sale of the Transfer Restricted Securities by the Holders thereof
from time to time to remain effective as provided in an Exchange and
Registration Rights Agreement.
"Related Business" means any business which is the same as or related,
ancillary or complimentary to the business of the Company on the Closing Date,
as reasonably determined by the Board.
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness of the Company.
"Resolution" means, with respect to the Company, a copy of a
resolution certified by the secretary or an assistant secretary of the Company
to have been duly adopted by the Board and to be in full force and effect on the
date on which such certification delivered to the Trustee, and, with respect to
a Guarantor, a copy of a resolution certified by the secretary or an assistant
secretary of such Guarantor to have been duly adopted by the board of directors
of such Guarantor and to be in full force and effect on the date on which such
certification delivered to the Trustee.
26
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Securities Legend" means the legend set forth in Section
2.3(e)(i) of Appendix A hereto.
"Revolving Credit Facility" means that certain senior secured
revolving credit facility provided to the Company by The Chase Manhattan Bank,
Xxxxxxx Xxxxx Capital Corporation and certain other lenders on the Closing Date
in an amount equal to $70,000,000 and/or any successor facility or facilities.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Subsidiary of the Company of any property,
whether owned by the Company or any Subsidiary of the Company as of the Closing
Date or later acquired, which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such property.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities issued under this Indenture.
"Securityholder" or "Holder" means the Person in whose name a Security
is registered on the Registrar's books.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Senior Credit Facilities" means the Revolving Credit Facility and the
Term Credit Facility, including any related notes, Guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced, restated or
refinanced from time to time.
"Senior Indebtedness" means with respect to Indebtedness of the
Company, (i) Indebtedness Incurred under
27
the Senior Credit Facilities and (ii) any other Indebtedness permitted to be
Incurred under the terms of this Indenture, unless the instrument under which
such Indebtedness is Incurred expressly provides that it is on parity with or
subordinated in right of payment to any Indebtedness for money borrowed.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
will not include (w) any liability for Federal, state, local or other taxes, (x)
any Indebtedness of the Company to any of its Subsidiaries, Unrestricted
Subsidiaries or other Affiliates, (y) any Trade Payables or (z) any Indebtedness
that is Incurred in violation of this Indenture. Senior Indebtedness shall
include (a) the principal of, premium, if any, and interest (including interest
accruing after the filing of a petition initiating any proceeding pursuant to
any Bankruptcy Law) in accordance with and at the rate (including any rate
applicable upon any default, to the extent lawful) specified in any document
evidencing the Senior Indebtedness (whether or not the claim for such interest
is allowed as a claim after such filing in any proceeding under such Bankruptcy
Law) and (b) all other obligations with respect to any Senior Indebtedness
(including all reimbursement obligations in respect of letters of credit issued
under the Senior Credit Facilities and all obligations for fees, expenses,
indemnities and other amounts payable thereunder or in connection therewith).
"Senior Indebtedness" of any Guarantor has a correlative meaning.
"Senior Subordinated Indebtedness" of the Company means the Securities
and any other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Securities in right of payment and
---- -----
is not subordinated by its terms in right of payment to any Indebtedness or
other obligation of the Company which is not Senior Indebtedness. "Senior
Subordinated Indebtedness" of a Guarantor has a correlative meaning.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary or Unrestricted Subsidiary of the Company that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Company, accounted for
more than 5.0% of the consolidated revenues of the Company and its Subsidiaries
or (ii) as of the end of such fiscal year, was the owner of more than 5.0% of
the consolidated assets of the Company and its Subsidiaries, all as set forth on
the most recently available consolidated financial statements of the Company for
such fiscal year.
"Special Interest" means an amount equal to $0.192 per week per $1,000
principal amount of Securities
28
constituting Transfer Restricted Securities held by each Holder until all
Registration Defaults have been cured.
"Sponsors" means, collectively, GE Investment Private Placement
Partners II, a Limited Partnership, and Warburg, Xxxxxx Ventures, L.P. and any
successor funds.
"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 an
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Indebtedness" means Indebtedness of the Company or any
Domestic Subsidiary if the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding provides that such
Indebtedness is subordinated in right of payment to the Securities or any
Domestic Subsidiary Guarantees of any such Domestic Subsidiary, as the case may
be, and may be subordinated to Senior Indebtedness.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof). Notwithstanding the foregoing, an
Unrestricted Subsidiary and all of its Subsidiaries shall not be a Subsidiary of
the Company for any purposes of this Indenture.
"Term Credit Facility" means that certain senior secured term loan
provided to the Company by The Chase Manhattan Bank, Xxxxxxx Xxxxx Capital
Corporation and certain other lenders on the Closing Date, in an aggregate
principal amount of $175,000,000.
29
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date of this 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
of such Person in connection with the acquisition of goods or services.
"Transfer Restricted Securities" means (i) each Initial Security until
the date on which such Security has been exchanged for a freely transferable
Exchange Security in an Exchange Offer, (ii) each Initial Security or Private
Exchange Security until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with a shelf registration
statement on an appropriate form under the Securities Act relating to the offer
and sale of the Transfer Restricted Securities by the Holders thereof from time
to time in accordance with the methods of distribution set forth in such
registration statement, (iii) each Initial Security or Private Exchange Security
until the date on which it is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act or (iv) any other Security that bears or is required to bear the
Restricted Securities Legend. Upon the occurrence of any of the events
described in clause (i), (ii) or (iii), the Company shall deliver to the Trustee
an Officers' Certificate stating that such event has occurred.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the terms of this Indenture and,
thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the Trustee
within the Corporate Trust Administration of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee performing functions similar
to those customarily performed by the above-designated officers, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge or familiarity with the
particular subject.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
30
"Unrestricted Subsidiary" means (i) any Person that (a) at the time of
determination shall be designated an Unrestricted Subsidiary by the Board in the
manner provided below and (b) would, but for such designation, be a Subsidiary
of the Company and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board
may designate any Subsidiary of the Company (including any newly acquired or
newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless
at the time of designation such Subsidiary or any Subsidiary of such Subsidiary
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 assets of $1,000 or less or (b)
if such Subsidiary has assets greater than $1,000, then such designation would
be permitted under Section 4.04 as a "Restricted Payment" after giving effect to
the designation. The Board may designate any Unrestricted Subsidiary to be a
Subsidiary; provided, however, that immediately after giving pro forma effect to
-------- -------
such designation (1) the Company could Incur $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test in Section 4.03 and
(2) no Default or Event of Default shall have occurred and be continuing. Any
such designation by the Board shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complies with the foregoing provisions.
"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 a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payments at final maturity, in respect thereof, by (b) the
number of years (calculated
31
to the nearest one-twelfth) that will elapse between such date and the making of
such payment, by (ii) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person.
Unrestricted Subsidiaries shall not be included in the definition of Wholly
Owned Subsidiary for any purposes of this Indenture.
SECTION 1.02. Other Definitions.
------------------
Defined in
Term Section
---- ------------
"Affiliate Transaction"........................ 4.07(a)
"Asset Sale Offer"............................. 4.06(c)(1)
"Asset Sale Offer Amount"...................... 4.06(c)(3)
"Asset Sale Purchase Date"..................... 4.06(c)(2)
"Bankruptcy Law"............................... 6.01
"cash"......................................... 4.06(a)
"Change of Control Offer"...................... 4.08(b)
"Change of Control Payment".................... 4.08(a)
"Change of Control Payment Date"............... 4.08(b)(3)
"conflicting interest"......................... 7.10
"covenant defeasance option"................... 8.01(b)
"CUSIP"........................................ 2.13
"Custodian".................................... 6.01
"Event of Default"............................. 6.01
"Excess Proceeds".............................. 4.06(c)(1)
"Exempt Asset Sale"............................ 4.06(a)
"Guaranteed Obligations"....................... 11.01
"legal defeasance option"...................... 8.01(b)
"Legal Holiday"................................ 13.08
"Notice of Default"............................ 6.01
"Paying Agent"................................. 2.04
"Payment Blockage Notice"...................... 10.03
"Payment Default".............................. 6.01(7)
"protected purchaser".......................... 2.08
"Registrar".................................... 2.04
"Restricted Payment"........................... 4.04
"Subordinated Reorganization Securities"....... 10.02(2)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference
32
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 and the Note Guarantees.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors 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 1.04. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
33
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE II
The Securities
--------------
SECTION 2.01. Amount of Securities; Issuable in Series. Except as
-----------------------------------------
otherwise provided herein, the aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is $265,000,000. The
Securities may be issued in one or more series. All Securities of any one
series shall be substantially identical except as to denomination.
With respect to any Additional Securities issued after the Closing
Date (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 2.07, 2.08, 2.09 or 3.06 or Appendix A hereto), there shall be (i)
established in or pursuant to a Board Resolution and (ii) (A) set forth or
determined in the manner provided by the Company in an Officer's Certificate or
(B) established in one or more indentures supplemental hereto, prior to the
issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part of a
new or existing series of Securities and the title of such Additional
Securities (which shall distinguish the Additional Securities of the series
from Securities of any other series);
(2) the aggregate principal amount of such Additional Securities which
may be authenticated and delivered under this Indenture, which shall be in
an aggregate principal amount not to exceed $150,000,000 (except for
Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the same series
pursuant to Section 2.07, 2.08, 2.09 or 3.06 or Appendix A hereto and
except for Securities which, pursuant to Section 2.03, are deemed never to
have been authenticated and delivered hereunder);
34
(3) the issue price and issuance date of such Additional Securities,
including the date from which interest on such Additional Securities shall
accrue;
(4) if applicable, that such Additional Securities shall be issuable
in whole or in part in the form of one or more Global Securities (as
defined in Appendix A hereto) and, in such case, the respective
depositaries for such Global Securities, the form of any legend or legends
which shall be borne by such Global Securities in addition to or in lieu of
those set forth in Exhibit A hereto and any circumstances in addition to or
in lieu of those set forth in Section 2.3 of Appendix A hereto in which any
such Global Security may be exchanged in whole or in part for Additional
Securities registered, or any transfer of such Global Security in whole or
in part may be registered, in the name or names of Persons other than the
depositary for such Global Security or a nominee thereof; and
(5) if applicable, that such Additional Securities shall not be issued
in the form of Initial Securities as set forth in Exhibit A hereto, but
shall be issued in the form of Exchange Securities as set forth in Exhibit
B hereto.
If any of the terms of any Additional Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or any Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or the indenture supplemental hereto setting forth the
terms of the Additional Securities. In addition, an Opinion of Counsel with
respect to the issuance of such Additional Securities, which Opinion of Counsel
shall be substantially in the form of the Opinion of Counsel delivered on behalf
of the Company on the Closing Date, shall be delivered to the Trustee at the
time of the delivery of the Officers' Certificate or the indenture supplemental
hereto.
SECTION 2.02. Form and Dating. Provisions relating to the Original
----------------
Securities, the Additional Securities, the Private Exchange Securities and the
Exchange Securities are set forth in Appendix A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The (i) Original
Securities and the Trustee's certificate of authentication, (ii) Additional
Securities (if issued as Transfer Restricted Securities) and the Trustee's
certificate of authentication and (iii) Private
35
Exchange Securities and the Trustee's certificate of authentication shall each
be substantially in the form of Exhibit A hereto, which is hereby incorporated
in and expressly made a part of this Indenture. The Exchange Securities (and any
Additional Securities issued other than as Transfer Restricted Securities) and
the Trustee's certificate of authentication shall each be substantially in the
form of Exhibit B hereto, which is hereby 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 or any Guarantor is subject, if any, or usage. Any such notation, legend
or endorsement shall be furnished to the Trustee in writing. Each Security shall
be dated the date of its authentication. The terms of the Securities set forth
in Appendix A hereto and Exhibits A and B hereto are part of the terms of this
Indenture.
SECTION 2.03. Execution and Authentication. One or more Officers of
-----------------------------
the Company shall sign the Securities for the Company by manual or facsimile
signature.
If an Officer of the Company 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
manual signature of the Trustee shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in Appendix A hereto.
The Trustee (at the expense of the Company) may appoint an
authenticating agent reasonably acceptable to the Company to authenticate the
Securities. Any such appointment shall be evidenced by an instrument signed by
a Trust Officer, a copy of which shall be 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 the Registrar, any Paying
Agent or any agent for service of notices and demands.
36
The Company initially appoints the Trustee as (i) Registrar and Paying
Agent in connection with the Securities, and (ii) the Securities Custodian (as
defined in Appendix A hereto) with respect to the Global Securities (as defined
in Appendix A hereto).
SECTION 2.04. 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
Company may have one or more transfer agents 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 the
Registrar, any transfer agent or any Paying Agent 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 7.07.
The Company or any of its domestically organized Wholly Owned Subsidiaries may
act as Registrar, transfer agent or Paying Agent.
The Company may remove the Registrar or any Paying Agent upon written
notice to the Registrar or such Paying Agent and to the Trustee; provided,
--------
however, that no such removal shall become effective until (1) acceptance of an
-------
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (1) above. The Registrar or any Paying Agent may resign
at any time upon written notice.
SECTION 2.05. Paying Agent To Hold Money in Trust. On or prior to
------------------------------------
each due date of the principal and interest, including Special Interest, on any
Security, the Company shall deposit with the Paying Agent (or if the Company or
any of its domestically organized Wholly Owned Subsidiaries is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons entitled
thereto) a
37
sum sufficient to pay such principal and interest, including Special 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, including Special Interest, on the
Securities and shall notify the Trustee of any default by the Company in making
any such payment. If the Company or any of its domestically organized Wholly
Owned Subsidiaries acts as Paying Agent, it shall 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 2.05, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06. 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, or cause the Registrar to 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.
SECTION 2.07. Transfer and Exchange. The Securities shall be issued
----------------------
in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(a)(l) of the
Uniform Commercial Code are met. When Securities are presented to the Registrar
with a request to exchange them for an equal principal amount of Securities of
other denominations, the Registrar shall make the exchange as requested if the
same requirements are met. To permit registration of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section 2.07. The Company shall not be
required to make, and the Registrar need not register, transfers or exchanges of
Securities selected for redemption (except, in the case
38
of Securities to be redeemed in part, the portion thereof not to be redeemed) or
any Securities for a period of 15 days before a selection of Securities to be
redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Guarantors, the Trustee, the Registrar, any transfer
agent and any Paying Agent 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, if any, including Special
Interest, on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, any Guarantor, the Trustee,
the Registrar, any transfer agent or any Paying Agent shall be affected by
notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (i) the Holder of
such Global Security (or its agent) or (ii) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.08. 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
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies the Company or the Trustee within a reasonable time after he has
notice of such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification, (ii) makes such
request to the Company or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (iii) satisfies any other reasonable requirements
of the Trustee. Such Holder shall furnish an indemnity bond sufficient in the
judgment of the Trustee to protect the Company, the Trustee, the Registrar, any
transfer agent and any Paying Agent from any loss that any of them may suffer
39
if a Security is replaced. The Company and the Trustee may charge the Holder for
their expenses in replacing a Security. In the event any such mutilated, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. 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 cancelation and those described in this Section
2.09 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 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected 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, including Special 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 2.10. Temporary Securities. In the event that Definitive
---------------------
Securities (as defined in Appendix A hereto) are to be issued under the terms of
this Indenture, until such 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
40
Company shall prepare and the Trustee shall authenticate Definitive Securities
and deliver them in exchange for temporary Securities upon surrender of such
temporary Securities at the office or agency of the Company, without charge to
the Holder.
SECTION 2.11. Cancelation. The Company at any time may deliver
------------
Securities to the Trustee for cancelation. 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 all
Securities surrendered for registration of transfer, exchange, payment or
cancelation, destroy such Securities and deliver a certificate of destruction
signed by a Trust Officer to the Company. The Company may not issue new
Securities to replace Securities it has redeemed, paid or delivered to the
Trustee for cancelation. The Trustee shall not authenticate Securities in place
of canceled Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. 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 or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.13. 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.
41
ARTICLE III
Redemption
----------
SECTION 3.01. 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 3.01 at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel 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 fewer 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 3.02. 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 pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any (provided, however, that the
-------- -------
Company shall have previously notified the Trustee in writing of any securities
exchange upon which the Securities are listed), and that the Trustee shall deem
to be 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 of the Securities or portions of
Securities to be redeemed.
42
SECTION 3.03. 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 at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(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) if any Securities are to be redeemed only in part, the portion of
the principal amount of such Securities to be redeemed;
(7) 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;
(8) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(9) the CUSIP number, if any, printed on the Securities being
redeemed; and
(10) 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
43
the Trustee with the information required by this Section 3.03.
SECTION 3.04. 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, including Special
Interest, to the redemption date; provided, however, 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 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 3.05. Deposit of Redemption Price. Prior to 10:00 a.m. on
----------------------------
the redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a domestically organized Wholly Owned Subsidiary of the Company 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
that have been delivered by the Company to the Trustee for cancelation.
SECTION 3.06. 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.
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities. The Company shall promptly pay
----------------------
the principal of and interest, including Special Interest, on the Securities on
the dates and in the manner provided in the Securities and in this Indenture.
Principal and interest, including Special 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,
including Special Interest, then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from
44
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 4.02. Reports. Whether or not required by the rules and
--------
regulations of the SEC, so long as any Securities are outstanding, the Company
shall furnish to the Trustee and to the Holders of Securities within 15 days
after it is or would have been required to file them with the SEC (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such forms, including a section entitled "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports. In addition, whether or not required by the rules and
regulations of the SEC, at any time after the Company files a registration
statement with respect to the Exchange Offer undertaken by the Company pursuant
to the Exchange and Registration Rights Agreement dated as of the Closing Date
or a shelf registration statement relating to the offer and sale of Transfer
Restricted Securities by the Holders thereof from time to time, the Company
shall (i) file a copy of all such information and reports with the SEC for
public availability (unless the SEC will not accept such a filing) and (ii) if
the SEC will not accept such filing, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to securities analysts and prospective investors. In addition, for so
long as any Securities remain outstanding, the Company shall furnish to the
Trustee, to the Holders of Securities and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act. The Company also shall comply with
the other provisions of TIA (S) 314(a).
SECTION 4.03. Limitation on Indebtedness. The Company shall not, and
---------------------------
shall not permit any of its Subsidiaries to, directly or indirectly, Incur any
Indebtedness (including Acquired Indebtedness) other than Permitted
Indebtedness; provided, however, that the Company and its Subsidiaries may Incur
-------- -------
Indebtedness (including
45
Acquired Indebtedness) if: (i) the Consolidated Interest Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is Incurred would have been at least 1.75 to 1.00 with
respect to any Incurrence on or before January 15, 2001, or at least 2.00 to
1.00 thereafter, determined on a pro forma basis (including a pro forma
application of the Net Proceeds therefrom), as if the additional Indebtedness
had been Incurred at the beginning of such four-quarter period; and (ii) no
Default or Event of Default (except any as may be cured through the application
of proceeds of such Indebtedness) shall have occurred and be continuing or would
occur as a consequence thereof.
For purposes of determining any particular amount of Indebtedness
under this Section 4.03, Guarantees, Liens or Obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included. For purposes of
determining compliance with this Section 4.03, in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the definition of Permitted Indebtedness, the Company, in its sole
discretion, shall classify such item of Indebtedness and shall only be required
to include the amount and type of such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments.
----------------------------------
(a) The Company shall not, and shall not permit any of its Subsidiaries,
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
dividends or distributions payable solely in its Capital Stock (other than
Redeemable Stock) and except dividends or distributions payable solely to the
Company or any Wholly Owned Subsidiary of the Company; (ii) purchase (except as
a Permitted Investment), redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any direct or indirect parent of the Company or
any Subsidiary of the Company (including any Intellectual Property Subsidiary)
or any Unrestricted Subsidiary or other Affiliate of the Company (other than any
such Capital Stock owned by the Company or any Wholly Owned Subsidiary of the
Company); (iii) make any principal payment on, or purchase, repurchase, redeem,
defease or otherwise acquire or retire for value, prior to a scheduled mandatory
sinking fund payment date or Stated Maturity any (a) Subordinated Indebtedness
of the Company or (b) Subordinated Indebtedness
46
of any Domestic Subsidiary; or (iv) make any Restricted Investment (any such
dividend, distribution, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment being herein referred to as a "Restricted
Payment"), unless, at the time of and after giving effect to such Restricted
Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to Incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the Consolidated Interest Coverage
Ratio test set forth in the first paragraph of Section 4.03; and
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made by the Company and its Subsidiaries
after the Closing Date, is less than the sum of:
(A) 50% of the Consolidated Net Income of the Company for the
period (treated as one accounting period) from the beginning of the
first fiscal quarter commencing after the Closing Date to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit), plus
(B) 100% of the aggregate Net Cash Proceeds received by the
Company from the issue or sale after the Closing Date of Capital Stock
of the Company or of debt securities of the Company that have been
converted into such Capital Stock (other than (x) Capital Stock (or
convertible debt securities) sold to a Subsidiary of the Company or an
Unrestricted Subsidiary of the Company, (y) Redeemable Stock or debt
securities that have been converted into Redeemable Stock and (z)
except as provided for in clause (D), an employee participation plan
or other trust
47
established by the Company or any of its Subsidiaries), plus
(C) 100% of the net reduction in Investments in any Unrestricted
Subsidiary of the Company resulting from payments of interest on
Indebtedness, dividends, repayments of principal of loans or advances,
or other transfers of assets, in each case to the Company or any
Subsidiary of the Company from such Unrestricted Subsidiary (except to
the extent that any such payment is included in the calculation of
Consolidated Net Income), or from redesignations of Unrestricted
Subsidiaries as Subsidiaries of the Company; provided that the amount
--------
included in this clause (C) shall not exceed the amount of Investments
previously made by the Company and its Subsidiaries in such
Unrestricted Subsidiary, plus
(D) 100% of the aggregate Net Cash Proceeds received by the
Company from the issue or sale after the Closing Date of Capital Stock
(other than Redeemable Stock) of the Company to any employee
participation plan or similar trust; provided, however, that if such
-------- -------
plan or trust Incurs any Indebtedness to, or Guaranteed by, the
Company or any of its Subsidiaries to finance the acquisition of such
Capital Stock, such aggregate amount shall be limited to such Net Cash
Proceeds less such Indebtedness Incurred to or Guaranteed by the
Company or any of its Subsidiaries and any increase in the
Consolidated Net Worth of the Company resulting from principal
repayments made by such plan or trust with respect to Indebtedness
Incurred by it to finance the purchase of such Capital Stock, plus
(E) the amount by which Indebtedness of the Company or its
Subsidiaries is reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Subsidiary of the Company)
subsequent to the Closing Date of any Indebtedness of the Company or
its Subsidiaries convertible or exchangeable into Capital Stock of the
Company (less the amount of any cash, or other property other than
such Capital Stock, distributed by the Company or any Subsidiary of
the Company upon such conversion or exchange).
48
(b) The foregoing provisions, however, will not prohibit:
(i) the payment of any dividend or distribution by any Subsidiary of
the Company that is not a Wholly Owned Subsidiary of the Company so long as
any such dividend or distribution is paid to all shareholders of such
Subsidiary on a pro rata basis;
(ii) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(iii) the making of any Restricted Payment in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company or any Unrestricted Subsidiary of the Company) of
Capital Stock of the Company (other than Redeemable Stock); provided that
--------
any net cash proceeds that are utilized for any such Restricted Payment,
and any Net Income resulting therefrom, shall be excluded from Section
4.04(a)(3);
(iv) the redemption, repurchase, retirement or other acquisition of
any Capital Stock or Subordinated Indebtedness of the Company in exchange
for, or out of the proceeds of, the substantially concurrent sale (other
than to a Subsidiary or any Unrestricted Subsidiary of the Company) of
other Capital Stock of the Company (other than any Redeemable Stock);
provided that any net cash proceeds that are utilized for any such
--------
redemption, repurchase, retirement or other acquisition, and any Net Income
resulting therefrom, shall be excluded from Section 4.04(a)(3);
(v) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of any Intellectual Property Subsidiary owned by
any Person other than the Company or any Wholly Owned Subsidiary of the
Company so long as the consideration paid in connection with any such
purchase, redemption, acquisition or retirement is solely in the form of
Qualified Subordinated Indebtedness;
(vi) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness, including premium, if
any, and accrued and unpaid interest, with the proceeds of Qualified
Subordinated Indebtedness;
49
(vii) Investments at any one time outstanding in an aggregate amount
not to exceed $25,000,000 in any Person or Persons the primary business of
which is related, ancillary or complementary to the businesses of the
Company and its Subsidiaries on the date of such Investments (provided that
Investments in any such Person or Persons with respect to which the Company
or any of its Wholly Owned Subsidiaries owns less than 50% of the
outstanding voting Capital Stock of any such Person may not exceed
$15,000,000 at any one time outstanding);
(viii) any payment by the Company or any of its Subsidiaries directly
or through any direct or indirect parent company (a) in connection with the
repurchase of outstanding shares of Capital Stock of the Company or
Holdings following the death, disability or termination of employment of
Management Shareholders and (b) of amounts required to be paid to
participants or former participants in employee benefit plans upon any
termination of employment by such participants as provided in the documents
related thereto, in an aggregate amount (for both clauses (a) and (b))
not to exceed $5,000,000 in any fiscal year (provided that any unused
amount may be carried over to any subsequent fiscal year subject to a
maximum amount of $10,000,000 in any fiscal year);
(ix) Investments in Currency Agreements;
(x) any repurchase of equity interests deemed to occur upon
exercise of stock options if such equity interests represent a portion of
the exercise price of such option;
(xi) payments to Holdings pursuant to any tax sharing agreement
under which the Company is allocated its proportionate share of the actual
tax liability of the affiliated group of corporations that file
consolidated Federal income tax returns (or that file state or local income
tax returns on a consolidated basis);
(xii) loans, advances, dividends or distributions by the Company or
any of its Subsidiaries to Holdings to pay for corporate, administrative
and operating expenses in the ordinary course of business, including
payment of directors' and officers' insurance premiums, key man life
insurance premiums, directors' fees, and fees, expenses and indemnities
incurred in connection
50
with the issuance of any Initial Securities and any other transactions
consummated in connection therewith on any Issue Date (including the
registration under applicable laws and regulations of its debt securities
as required by any Exchange and Registration Rights Agreement); and
(xiii) (A) loans, advances, dividends or distributions by the
Company or any of its Subsidiaries to Holdings not to exceed an amount
necessary to permit Holdings to pay (1) its costs (including all
professional fees and expenses) incurred to comply with its reporting
obligations under Federal or state laws or under this Indenture, including
as described under Section 4.02, or in connection with reporting or other
obligations under the Senior Credit Facilities or any related collateral
documents or guarantees, (2) its expenses incurred in connection with any
public offering of equity securities which has been terminated by the
board of directors of Holdings, the net proceeds of which were specifically
intended to be received by or contributed or loaned to the Company, and (B)
loans or advances by the Company or any of its Subsidiaries to Holdings not
to exceed an amount necessary to permit Holdings to pay its interim
expenses incurred in connection with any public offering of equity
securities the net proceeds of which are specifically intended to be
received by or contributed or loaned to the Company, which, unless such
offering shall have been terminated by the board of directors of Holdings,
shall be repaid to the Company promptly out of the proceeds of such
offering. In computing the amount of Restricted Payments for purposes of
clause (a)(3) of this Section 4.04, Restricted Payments under clauses
(b)(ii) and (b)(viii) of this Section 4.04 shall be included, and
Restricted Payments under clauses (b)(i), (b)(iii), (b)(iv), (b)(v),
(b)(vi), (b)(vii), (b)(ix), (b)(x), (b)(xi), (b)(xii) and (b)(xiii) of this
Section 4.04 shall not be included.
(c) The amount of all Restricted Payments (other than cash) shall be
the Fair Market Value (as determined by the Board, whose determination shall be
conclusive if made in good faith and evidenced in a Board Resolution) on the
date of the Restricted Payment of the asset(s) proposed to be transferred by the
Company or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and
51
setting forth the basis upon which the calculations required by this Section
4.04 were computed, which calculations may be based upon the Company's latest
available financial statements.
SECTION 4.05. Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Subsidiaries. The Company shall not, and shall not permit any of its
-----------------------
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Subsidiary of the Company to (i)(a) pay dividends or make
any other distributions to the Company or any of its Subsidiaries on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits or (b) pay any Indebtedness owed to the Company or any of its
Subsidiaries, (ii) make loans or advances to the Company or any of its
Subsidiaries, or (iii) transfer any of its properties or assets to the Company
or any of its Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of:
(1) Existing Indebtedness as in effect on the Closing Date;
(2) the Senior Credit Facilities as in effect as of the Closing Date,
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof; provided
--------
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, in any material respect (as determined by
the Board, whose determination shall be conclusive if made in good faith
and evidenced by a Board Resolution) with respect to such dividend and
other payment restrictions than those contained in the Senior Credit
Facilities as in effect on the Closing Date;
(3) this Indenture, the Securities and the Domestic Subsidiary
Guarantees;
(4) applicable law;
(5) Refinancing Indebtedness; provided that the restrictions contained
--------
in the agreements governing such Refinancing Indebtedness are no more
restrictive, taken as a whole, in any material respect (as determined by
the Board, whose determination shall be conclusive if
52
made in good faith and evidenced by a Board Resolution) than those
contained in the agreements governing the Indebtedness being refinanced;
(6) Indebtedness of a Person existing at the time such Person becomes
a Subsidiary of the Company (provided that (1) such Indebtedness is not
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary of the Company, (2) such encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than the Person so acquired and its Subsidiaries and (3) such Indebtedness
is otherwise permitted to be incurred pursuant to the provisions of Section
4.03;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant
to Sections 4.03 and 4.14 to the extent that such Indebtedness limits the
right of the debtor to dispose of the assets securing such Indebtedness;
(8) customary non-assignment provisions restricting subletting or
assignment of any lease or other agreement entered into by the Company or
any of its Subsidiaries;
(9) customary net worth provisions contained in leases and other
agreements entered into by the Company or any of its Subsidiaries in the
ordinary course of business; and
(10) customary restrictions with respect to a Subsidiary of the
Company pursuant to an agreement that has been entered into for the sale or
other disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary.
SECTION 4.06. Limitation on Sales of Assets.
------------------------------
(a) The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, engage in an Asset Sale (except an Asset Sale (an
"Exempt Asset Sale") the Net Proceeds of which plus the Net Proceeds of all
other Asset Sales concurrently or previously made in the same fiscal year do not
exceed $3,000,000) unless (i) the Company (or the Subsidiary) receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value (as determined by the Board, whose determination shall be conclusive if
made in good faith and evidenced by a Board Resolution), and in the case of a
lease of assets, a lease providing for rent and other conditions which are no
less
53
favorable to the Company (or the Subsidiary) in any material respect than the
then prevailing market conditions (as determined by the Board, whose
determination shall be conclusive if made in good faith and evidenced by a Board
Resolution) of the assets or Capital Stock sold or otherwise disposed of, and
(ii) at least 80% (100% in the case of lease payments) of the consideration
therefor received by the Company (or the Subsidiary) is in the form of cash or
Cash Equivalents; provided that for purposes of this clause (ii), "cash" shall
--------
include the amount of any Indebtedness for money borrowed and any Capital Lease
Obligation that (x) is assumed by the transferee of any such assets or other
property in such Asset Sale or (y) with respect to the sale or other disposition
of all of the Capital Stock of any Subsidiary of the Company, remains the
liability of such Subsidiary subsequent to such sale or other disposition, but
only to the extent that such assumption, sale or other disposition, as the case
may be, is effected on a basis under which there is no further recourse to the
Company or any of its Subsidiaries with respect to such liability.
(b) Notwithstanding Section 4.06(a), the Company shall not permit any
Intellectual Property Subsidiary to sell, lease, convey, dispose of or otherwise
transfer any of its properties or assets in one or a series of related
transactions (other than the granting of licenses to the Company as permitted
under this Indenture) unless, at the time of such sale, lease, conveyance,
disposition or other transfer, such Intellectual Property Subsidiary is a Wholly
Owned Subsidiary of the Company.
(c) (1) The Company may apply Net Proceeds of an Asset Sale, at its
option, within 360 days from the receipt of such Net Proceeds (i) to permanently
reduce Senior Indebtedness other than Indebtedness under the Revolving Credit
Facility, (ii) to permanently reduce Indebtedness under the Revolving Credit
Facility (and to correspondingly reduce commitments with respect thereto), (iii)
to acquire another business (including through purchase of stock or merger) or
other assets, in each case in, or used or useful in, the same or a similar line
of business as the Company or any of its Subsidiaries was engaged in on the
Closing Date or any reasonable extensions or expansions thereof or (iv) to
reimburse the Company or its Subsidiaries for expenditures made, and costs
incurred, to repair, rebuild, replace or restore property subject to loss,
damage or taking to the extent that the Net Proceeds consist of insurance
proceeds received on account of such loss, damage or taking. Pending the final
application of any such Net
54
Proceeds, the Company may temporarily reduce Indebtedness under the Revolving
Credit Facility (without any obligation to reduce the commitments thereunder) or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture.
Any Net Proceeds from Asset Sales (other than Exempt Asset Sales) that
are not applied or invested as provided and in the relevant time period
described in the first sentence of this Section 4.06(c)(1) shall be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $10,000,000, the Company shall make an offer to all Holders of
Securities (and, at its option, holders of other pari passu Indebtedness) (an
---- -----
"Asset Sale Offer") to purchase the maximum principal amount of Securities (and
such other Indebtedness) that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest, including Special Interest (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), to the date of purchase, in accordance
with the procedures set forth in Section 4.06(c)(2). Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset at zero. If the
aggregate purchase price of Securities tendered pursuant to the Asset Sale Offer
is less than the Net Proceeds allotted to the purchase of the Securities, the
Company may apply the remaining Net Proceeds to general corporate purposes.
(2) Promptly, and in any event within 30 days after the Company
becomes obligated to make an Asset Sale Offer, the Company shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that such Holder may elect to have such Holder's Securities
purchased by the Company either in whole or in part (subject to prorationing as
hereinafter described in the event the Asset Sale Offer is oversubscribed) in
integral multiples of $1,000 of principal amount, at the applicable purchase
price. The notice shall specify a purchase date not less than 30 days nor more
than 60 days after the date of such notice (the "Asset Sale Purchase Date") and
shall contain such information concerning the Asset Sale Offer and the business
of the Company which the Company in good faith believes will enable such Holders
to make an informed decision (which at a minimum shall include (i) the most
recently filed Annual Report on Form 10-K (including audited consolidated
financial statements) in respect of the Company, the most
55
recent subsequently filed Quarterly Report on Form 10-Q and any Current Report
on Form 8-K in respect of the Company filed subsequent to such Quarterly Report,
other than Current Reports describing Asset Sales otherwise described in the
offering materials (or corresponding successor reports) and (ii) if material,
appropriate pro forma financial information) and all instructions and materials
necessary to tender Securities pursuant to the Asset Sale Offer.
(3) Not later than the date upon which written notice of an Asset
Sale Offer is delivered to the Trustee as provided in Section 4.06(c)(2), the
Company shall deliver to the Trustee an Officers' Certificate as to (i) the
amount of the Asset Sale Offer (the "Asset Sale Offer Amount"), (ii) the
allocation of the Net Proceeds from the Asset Sale pursuant to which such Asset
Sale Offer is being made and (iii) the compliance of such allocation with the
provisions of Section 4.06(c)(1). On such date, the Company shall also
irrevocably deposit with the Trustee or with a paying agent (or, if the Company
is acting as its own paying agent, segregate and hold in trust) an amount equal
to the Asset Sale Offer Amount to be held for payment in accordance with the
provisions of this Section 4.06(c)(3). On the Asset Sale Purchase Date, the
Company shall deliver, or cause to be delivered, to the Trustee for cancelation
the Securities or portions thereof that have been properly tendered to, and are
to be accepted by, the Company. The Paying Agent shall promptly mail or deliver
payment to each tendering Holder in the amount of the applicable purchase price.
In the event that the aggregate purchase price of the Securities (and other pari
----
passu Indebtedness) delivered by the Company to the Trustee is less than the
-----
Asset Sale Offer Amount, the Trustee shall deliver the excess to the Company
immediately after completion of the Asset sale Offer in accordance with this
Section 4.06.
(4) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Paying Agent at the address specified in the notice at least five Business Days
prior to the Asset Sale Purchase Date. Holders shall be entitled to withdraw
their election if the Paying Agent receives not later than three Business Days
prior to the Asset Sale Purchase Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security which was delivered by the Holder for purchase and a statement that
such Holder is withdrawing its election to have such Security purchased. If on
the Asset Sale Purchase Date the aggregate principal
56
amount of Securities (and other pari passu Indebtedness) included in the Asset
---- -----
Sale Offer surrendered by holders thereof exceeds the Asset Sale Offer Amount,
the Company shall select the Securities (and such other pari passu Indebtedness)
---- -----
to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(5) At the time the Company delivers, or causes to be delivered,
Securities to the Trustee which are to be accepted for purchase, the Company
shall also deliver an Officers' Certificate stating that such Securities are to
be accepted by the Company pursuant to and in accordance with the terms of this
Section 4.06. A Security shall be deemed to have been accepted for purchase at
the time the Paying Agent, directly or through an agent, mails or delivers
payment therefor to the surrendering Holder.
(6) 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 4.06. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.06, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.06 by virtue
thereof.
(d) The provisions of Section 4.06(a) shall not prohibit an Asset
Swap if (i) at the time of entering into the related Asset Swap Agreement or
immediately after giving effect to such Asset Swap, no Default or Event of
Default shall have occurred or be continuing or would occur as a consequence
thereof, (ii) in the event that the EBITDA associated with the Productive Assets
that are the subject of such Asset Swap for the period of the most recent four
consecutive fiscal quarters ending at least 45 days prior to the date on which
the related Asset Swap Agreement is executed by the parties thereto exceeds
$3,000,000, the Company provides to the Trustee a written opinion of an
Independent Financial Advisor that such Asset Swap is fair to the Company from a
financial point of view and (iii) the EBITDA associated with the Productive
Assets that are the subject of such Asset Swap for the period of the most recent
four consecutive fiscal quarters ending at least 45 days
57
prior to the date on which the related Asset Swap Agreement is executed by the
parties thereto, when aggregated with the EBITDA associated with all other
Productive Assets that were the subject of any previously completed Asset Swap
for the period of the most recent four consecutive fiscal quarters ending at
least 45 days prior to the date on which each related Asset Purchase Agreement
was executed by the parties thereto, does not exceed $10,000,000. For purposes
of computing the EBITDA associated with the Productive Assets that are the
subject of an Asset Swap, the Company shall allocate selling, general and
administrative expenses to such Productive Assets such that the ratio of the
selling, general and administrative expenses allocated to such Productive Assets
for the relevant period to the total selling, general and administrative
expenses of the Company and its consolidated Subsidiaries for such period is
equal to the ratio of the revenues attributable to such Productive Assets for
such period to the total revenues of the Company and its consolidated
Subsidiaries for such period.
SECTION 4.07. Limitation on Transactions with Affiliates. (a) The
-------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, after the Closing Date, in any one or a series of related
transactions, sell, lease, transfer or otherwise dispose of any of its
properties, assets or services to, or make any payment to, or purchase any
property, assets or services from, or enter into or make any agreement, loan,
advance or Guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), other than Exempt Affiliate
Transactions, unless (i) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Subsidiary with
an unrelated Person, as evidenced by an Officers' Certificate delivered by the
Company to the Trustee, and (ii) the Company delivers to the Trustee (a) with
respect to any Affiliate Transaction entered into after the Closing Date
involving aggregate consideration in excess of $5,000,000, a resolution of a
committee of Independent Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and has been approved by such committee or, in the event there are no
Independent Directors, an opinion as to the fairness to the Company or such
Subsidiary of such Affiliate Transaction from a financial point of view issued
by an Independent Financial Advisor and (b) with respect to an Affiliate
Transaction entered into after the Closing Date involving aggregate
consideration in excess of $25,000,000, or in
58
connection with the sale or other transfer in one or a series of related
transactions of any patents, trademarks, copyrights or other intellectual
property to any Intellectual Property Subsidiary and the related sale or other
transfer in one or a series of related transactions of any interest in such
Intellectual Property Subsidiary (other than any such sale or transfer to the
Company or any Wholly Owned Subsidiary of the Company), an opinion as to the
fairness to the Company or such Subsidiary of such Affiliate Transaction from a
financial point of view issued by an Independent Financial Advisor.
(b) The provisions of Section 4.07(a) shall not prohibit the Company
from entering into any license agreement or other agreement or arrangement
relating to licensing fees, royalty payments or similar fees or payments with
any Intellectual Property Subsidiary that provides for the payment of any fees
or the making of any payments by the Company to the Intellectual Property
Subsidiary in any year in excess of 10% of the gross revenues for such year
attributable to the sales of products using the patents, trademarks, copyrights
or other intellectual property that is the subject of such agreement or
arrangement.
SECTION 4.08. Change of Control. (a) Upon a Change of Control, each
------------------
Holder shall have the right to require that the Company 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, including
Special Interest, 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) (the "Change of Control Payment"), in accordance with the
terms contemplated in Section 4.08(b). In the event that at the time of such
Change of Control the terms of the Senior Indebtedness restrict or prohibit the
repurchase of Securities pursuant to this Section 4.08, then prior to the
mailing of the notice to Holders provided for in Section 4.08(b) but in any
event within 30 days following any Change of Control, the Company shall (i)
repay in full all Senior Indebtedness or offer to repay in full all Senior
Indebtedness and repay the Senior Indebtedness of each lender who has accepted
such offer or (ii) obtain the requisite consent under the agreements governing
the Senior Indebtedness to permit the repurchase of the Securities as provided
for in Section 4.08(b).
59
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee (the "Change of Control
Offer") stating:
(1) that a Change of Control has occurred and that such Holder has the
right to require the Company to purchase 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, including Special Interest, 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);
(2) the circumstances and relevant facts and financial information
regarding such Change of Control;
(3) the repurchase date (which shall be a Business Day no earlier than
30 days nor later than 60 days from the date such notice is mailed) (the
"Change of Control Payment Date"); and
(4) the instructions determined by the Company, consistent with this
Section 4.08, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Paying Agent at the address specified in the notice at least five Business Days
prior to the Change of Control Payment Date. Holders shall be entitled to
withdraw their election if the Paying Agent receives not later than three
Business Days prior to the Change of Control Payment Date a telegram, 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 its election to have such Security
purchased.
(d) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Securities or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount of Securities or portions
thereof being purchased by the
60
Company. The Paying Agent shall promptly mail to each Holder of Securities so
tendered the Change of Control Payment for such Securities, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Security equal in principal amount to any unpurchased
portion of the Securities surrendered; provided that each such new Security
--------
shall be in a principal amount of $1,000 or an integral multiple thereof. The
Company shall publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.
(e) Notwithstanding the foregoing provisions of this Section 4.08,
the Company will not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in Section
4.08(b) applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
(f) 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 4.08. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.08, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.08 by virtue
thereof.
SECTION 4.09. Compliance Certificate. The Company shall deliver to
-----------------------
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The fiscal year of the Company ends on December 31 of
each year. The Company also shall comply with Section 314(a)(4) of the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of the
-----------------------------
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as
61
may be reasonably necessary or proper to carry out more effectively the purpose
of this Indenture.
SECTION 4.11. Future Guarantors. The Company shall cause each of its
------------------
future Domestic Subsidiaries to enter into a supplemental indenture,
substantially in the form of Exhibit C hereto, providing for such Domestic
Subsidiary to Guarantee payment of the Securities. Each Note Guarantee provided
by each Domestic Subsidiary shall be limited to an amount not to exceed the
maximum amount that can be Guaranteed by the relevant Subsidiary without
rendering such Guarantee, as it relates to such Subsidiary, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 4.12. Limitation on Lines of Business. The Company shall not,
--------------------------------
and shall not permit any Subsidiary to, engage in any business, other than a
Related Business.
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock of
------------------------------------------------------
Subsidiaries. The Company shall not sell any shares of Capital Stock of any of
-------------
its Subsidiaries to any Person (other than to the Company or a Wholly Owned
Subsidiary of the Company), and shall not permit any of its Subsidiaries,
directly or indirectly, to issue or sell any shares of its Capital Stock to any
Person (other than to the Company or a Wholly Owned Subsidiary of the Company),
unless, immediately after giving effect to such sale or issuance, such
Subsidiary would no longer be a Subsidiary of the Company; provided, however,
-------- -------
that this Section 4.13 shall not prohibit (i) the Company or any of its
Subsidiaries from selling or disposing of all of the Capital Stock of any of its
Subsidiaries, (ii) the creation of any Subsidiary of the Company that, at the
time of the initial issuance of any shares of Capital Stock of such Subsidiary,
is not a Wholly Owned Subsidiary of the Company or (iii) the designation of a
Subsidiary as an Unrestricted Subsidiary in compliance with this Indenture. The
proceeds of any sale of such Capital Stock permitted under this provision will
be treated as Net Proceeds of an Asset Sale and must be applied in accordance
with the terms of Section 4.06.
SECTION 4.14. Limitation on Subordinated Liens. The Company shall
---------------------------------
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create or suffer to exist any Lien (other than Permitted Liens) on any of its
property or assets, whether owned on the Closing Date or thereafter acquired,
securing any Indebtedness other than Senior Indebtedness, unless the Securities
or, in the case
62
of a Subsidiary of the Company, its Note Guarantee, are secured equally and
ratably with such other Indebtedness; provided that if such Indebtedness is by
--------
its terms expressly subordinate to the Securities in the case of the Company or
to the Note Guarantee in the case of a Subsidiary of the Company, the Lien
securing such Indebtedness shall be subordinate or junior to the Lien securing
the Securities or the Note Guarantee, as the case may be, with the same relative
priority as such Indebtedness shall have with respect to the Securities or the
Note Guarantee, as the case may be.
SECTION 4.15. Limitation on Sale and Leaseback Transactions. The
----------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to, enter into
any Sale and Leaseback Transaction. Notwithstanding the foregoing, the Company
or any Subsidiary of the Company may enter into a Sale and Leaseback Transaction
if: (i) after giving pro forma effect to any such Sale and Leaseback
Transaction, the Company shall be in compliance with Sections 4.03 and 4.14;
(ii) the gross cash proceeds of such Sale and Leaseback Transaction are at least
equal to the Fair Market Value of such property (as determined by the Board,
whose determination shall be conclusive if made in good faith and evidenced by a
Board Resolution); and (iii) the Company shall apply the net cash proceeds of
the sale as provided under Section 4.06, to the extent required therein.
SECTION 4.16. Limitation on Layering Debt. The Company shall not
----------------------------
Incur any Indebtedness that is subordinate or junior in right of payment to any
Senior Indebtedness of the Company and senior in any respect in right of payment
to the Securities.
SECTION 4.17. Restrictions on Holdings. Holdings may not hold any
-------------------------
assets other than the Capital Stock of the Company and other minimal assets
related to the business of owning the Capital Stock of the Company and may not
incur any liabilities other than the liabilities under the Securities and the
Senior Credit Facilities and tax liabilities and other liabilities in the
ordinary course of business. Holdings must at all times own 100% of the Capital
Stock of the Company and may not sell, transfer or otherwise dispose of any
shares of Capital Stock of the Company. Holdings may not engage in any business
other than owning the Capital Stock of the Company, unless Holdings and the
Company have merged in compliance with the provisions of this Indenture, the and
other activities reasonably incidental thereto.
63
ARTICLE V
Successor Company
-----------------
SECTION 5.01. Merger, Consolidation or Sale of Assets of the Company.
------------------------------------------------------
(a) The Company shall not, in a single transaction or series of related
transactions, consolidate with or merge with or into (whether or not the Company
is the surviving corporation), or directly and/or indirectly through its
Subsidiaries sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Subsidiaries taken as a whole) in one or more
related transactions, to another Person, or allow any Person to merge into the
Company (other than the consolidation or merger of a Wholly Owned Subsidiary
with or into the Company) (provided that the creation of a Lien by a Person on
or in any of its assets shall not in and of itself constitute the sale,
assignment, transfer, lease, conveyance or other disposition of the asset or
assets subject to the Lien) unless:
(i) either (a) the Company is the surviving corporation or (b) the
entity or the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a
corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia and expressly assumes all the
obligations of the Company under the Securities and this Indenture pursuant
to a supplemental indenture in a form reasonably satisfactory to the
Trustee;
(ii) immediately after giving effect to such transaction no Default
or Event of Default exists; and
(iii) the Company or, if other than the Company, the entity or Person
formed by or surviving any such consolidation or merger, or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall
have been made will, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning
of the applicable four-quarter period, be permitted to Incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to
the Consolidated Interest Coverage Ratio test set forth in 4.03(a).
64
(b) The provisions of Section 5.01(a) shall not prohibit the Company
from transferring patents, trademarks, copyrights and other intellectual
property to one or more Intellectual Property Subsidiaries.
(c) In the event of any transaction (other than a lease) described
in, and complying with, Section 5.01(a) in which the Company is not the
surviving Person and the surviving Person assumes all the obligations of the
Company under the Securities and this Indenture pursuant to a supplemental
indenture, such surviving Person shall succeed to, and be substituted for, and
may exercise every right and power of, the Company, and the Company will be
discharged from its obligations under this Indenture and the Securities;
provided that solely for the purpose of calculating amounts described in Section
--------
4.04(a)(3), any such surviving Person shall only be deemed to have succeeded to,
and be substituted for, the Company with respect to the period subsequent to the
effective time of such transaction, and the Company (before giving effect to
such transaction) shall be deemed to be the "Company" for such purposes for all
prior periods.
(d) For purposes of Section 5.01(a), the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(e) Prior to the consummation of any transaction described in, and
complying with, Section 5.01(a), the Company shall deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel (which may rely as to the
matters set forth in Section 5.01(a)(ii) and Section 5.01(a)(iii) on such
Officers' Certificate), each stating that (i) such transaction (and any
supplemental indenture executed in connection therewith) is in compliance with
the requirements set forth in this Article V, (ii) all conditions precedent to
the effectiveness of such transaction (and any supplemental indenture executed
in connection therewith) have been satisfied and (iii) any supplemental
indenture executed in connection therewith constitutes the legal, valid and
binding obligation of the obligor thereunder, subject to customary exceptions.
65
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
------------------
(1) the Company defaults in any payment of interest, including Special
Interest, on any Security when the same becomes due and payable, whether or
not such payment shall be prohibited by Article X, and such default
continues for a period of 30 days;
(2) the Company (i) defaults in the payment of the principal of or
premium, if any, on any Security when the same becomes due and payable at
its Stated Maturity, upon redemption, upon declaration or otherwise,
whether or not such payment shall be prohibited by Article X or (ii) fails
to redeem or purchase Securities when required pursuant to this Indenture
or the Securities, whether or not such redemption or purchase shall be
prohibited by Article X;
(3) the Company fails to comply with Section 5.01;
(4) the Company or Holdings, as the case may be, fails to comply with
Section 4.06 or 4.08;
(5) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.07, 4.11, 4.12, 4.13, 4.14, 4.15 or 4.16 and such failure continues for
30 days after the notice specified below;
(6) 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 30 days after the notice
specified below;
(7) there exists a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is Guaranteed by the Company or any
of its Subsidiaries) whether such Indebtedness or Guarantee exists on the
Closing Date, or is created after the Closing Date, which default (a) is
caused by a failure to pay principal of or interest on such Indebtedness
when due
66
after giving effect to applicable grace periods (a "Payment Default") or
(b) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been so
accelerated, totals $10,000,000 or more;
(8) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(10) any judgment or decree for the payment of money in excess of
$10,000,000 or its foreign currency equivalent at the time is entered
against the Company or any Significant Subsidiary and is not discharged,
waived or stayed, or fully covered by insurance, and
67
either (A) an enforcement proceeding has been commenced by any creditor
upon such judgment or decree or (B) there is a period of 45 days following
the entry of such judgment or decree during which such judgment or decree
is not discharged, waived or the execution thereof stayed; or
(11) any Note Guarantee shall cease to be in full force and effect
(except as contemplated by the terms thereof) or any Guarantor or Person
acting by or on behalf of such Guarantor shall deny or disaffirm its
obligations 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 (5), (6) or (10) 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 Officers' Certificate of
any Event of Default under clause (7) or (11) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (5), (6) or (10), its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
-------------
Event of Default specified in Section 6.01(8) or (9) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or
68
the Holders of at least 25% 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 6.01(8) or (9) with respect to the
Company occurs, 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 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 6.03. Other Remedies. If an Event of Default occurs and is
---------------
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest or Special 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 6.04. Waiver of Past Defaults. The Holders of a majority in
------------------------
principal amount of the 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 or Special Interest on a Security (ii) a Default
arising from the failure to redeem or purchase any Security when required
pursuant to the terms of this Indenture or (iii) a Default in respect of a
provision that under Section 9.02 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.
69
SECTION 6.05. Control by Majority. The Holders of a majority in
--------------------
principal amount of the 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 7.01, 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 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 6.06. Limitation on Suits. Except to enforce the right to
--------------------
receive payment of principal, premium (if any) or interest, including Special
Interest, when due, no Securityholder may pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
against any loss, liability or expense that is reasonably satisfactory to
the Trustee in its sole discretion;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the 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 6.07. Rights of Holders To Receive Payment. Notwithstanding
-------------------------------------
any other provision of this
70
Indenture, the right of any Holder to receive payment of principal of and
interest, including Special 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 6.08. Collection Suit by Trustee. If an Event of Default
---------------------------
specified in Section 6.01(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
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
---------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, any Subsidiary of
the Company or any 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 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
-----------
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company to the
extent required by Article X;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, including Special Interest, ratably,
without preference or priority of any kind, according to the amounts due
71
and payable on the Securities for principal, interest and Special 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 6.10. 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 6.11. Undertaking for Costs. In any suit for the enforcement
----------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the Company
---------------------------------
nor any Guarantor (to the extent it may lawfully do so) shall 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 each of the Company and each Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and 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 7.01. Duties of Trustee. (a) 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
72
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) 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
(2) 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,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture but need
not verify the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) 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
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section 7.01.
(e) 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.
73
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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 indemnity against such risk or liability that is reasonably
satisfactory to it in its sole discretion is not reasonably assured to it.
(h) 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 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
------------------
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel from the Company. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) 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.
(e) The Trustee may consult with counsel, 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.
74
(f) 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, but the Trustee 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.
SECTION 7.03. 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. The Registrar, any transfer agent, the
Paying Agent or any co-paying agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
---------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the 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 7.05. Notice of Defaults. If a Default occurs and is
-------------------
continuing and if it is known to the Trustee (which, to the extent permitted by
the TIA, shall be known to a Trust Officer), the Trustee shall mail to each
Securityholder notice of the Default within 90 days after the occurrence
thereof. Except in the case of a Default in payment of principal of or interest
on any Security (including payments pursuant to the mandatory redemption
provisions of such Security, if 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 7.06. Reports by Trustee to Holders. As promptly as
------------------------------
practicable after each May 15 beginning with the May 15 following the Closing
Date, and in any event prior to July 15 in each year, the Trustee shall mail to
each Securityholder a brief report dated as of May 15 that
75
complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
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 7.07. Compensation and Indemnity. The Company and each
---------------------------
Guarantor, jointly and severally, shall pay to the Trustee from time to time
such compensation for its services as the Company and the Trustee shall agree in
writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and each Guarantor,
jointly and severally, 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
and each Guarantor, jointly and severally, shall indemnify the Trustee, in its
individual capacity and as Trustee, and its officers, directors and employees
against any and all loss, liability, claim, damage or expense (including
reasonable attorneys' fees) incurred by or in connection with the administration
of this trust and the performance of its or their duties hereunder. The Trustee
shall notify the Company of any claim for which it may seek indemnity promptly
upon a Trust Officer obtaining actual knowledge thereof; provided, however, that
-------- -------
any failure so to notify the Company shall not relieve the Company or any
Guarantor of its indemnity obligations hereunder. 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 and the Guarantors shall have the joint responsibility
to pay the fees and expenses of such counsel; provided, however, that the
-------- -------
Company and the Guarantors shall not be required to pay such fees and expenses
if any of them assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and the Guarantors and such parties in connection with such
defense. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by an indemnified party through such party's
own wilful misconduct, negligence or bad faith.
76
To secure the Company's and the Guarantors' payment obligations in
this Section 7.07, 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, including Special Interest, on
particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence
of a Default specified in Section 6.01(7) or (8) with respect to the Company,
the expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
-----------------------
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) 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 Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of 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
77
by it as Trustee to the successor Trustee upon payment of all sums due and
payable to it at such time, subject to the lien provided for in Section 7.07.
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 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 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. 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 anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of TIA (S) 310(a). The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b); provided, however, that there shall be excluded from the operation
-------- -------
of
78
TIA (S) 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 (S)
310(b)(1) are met.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the TIA, the Trustee and the Company shall in
all respects comply with the provisions of Section 310(b) of the TIA within 90
Business Days thereof. Nothing herein shall prevent the Trustee from filing with
the SEC the application referred to in the penultimate paragraph of Section
310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company. The
--------------------------------------------------
Trustee shall comply with TIA (S) 311(a), excluding any creditor relationship
listed in TIA (S) 311(b). A Trustee who has resigned or been removed shall be
subject to TIA (S) 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
-------------------------------------------------
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.08) for cancelation 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 III hereof
and the Company irrevocably deposits with the Trustee funds or U.S. Government
Obligations on which payment of principal and interest, including Special
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 Securities replaced pursuant to Section 2.08), and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of
this Indenture in a manner satisfactory to the Trustee on written demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel and at
the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all of its obligations under the Securities (and the obligations
79
of the Guarantors under their respective Note Guarantees) and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 or
4.17 and the operation of Section 6.01(5), 6.01(7) and 6.01(10) ("covenant
defeasance option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. In the
event that the Company terminates all of its obligations under the Securities
and this Indenture by exercising either its legal defeasance option, the
obligations under the Note Guarantees shall each be terminated simultaneously
with the termination of such obligations.
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 6.01(5),
6.01(7) and 6.01(10).
Upon satisfaction of the conditions set forth herein and upon written
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 7.07, 7.08 and
in this Article VIII shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
(d) Notwithstanding clause (a) and (b) above, the Company shall not
exercise its legal defeasance option or its covenant defeasance option while the
Senior Credit Facilities are outstanding unless such defeasance is permitted
thereunder or the holders of the Indebtedness represented by the Senior Credit
Facilities (or a Representative thereof) consent to such legal defeasance or
covenant defeasance and the Company has delivered an Officers' Certificate and
an Opinion of Counsel to such effect to the Trustee.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
-------------------------
legal defeasance option or its covenant defeasance option only if:
80
(1) the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders of the Securities, cash in U.S. dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest, including Special Interest, on the outstanding Securities on
the Stated Maturity or on the applicable redemption date, as the case may
be, and the Company specifies whether the Securities are being defeased to
maturity or to a particular redemption date;
(2) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
Closing Date, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Securities will
not recognize income, gain or loss for Federal income tax purposes as a
result of such legal defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such legal defeasance had not occurred;
(3) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
confirming that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 95th day
after the date of deposit;
81
(5) such legal defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(6) the Company delivers to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Securities over other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
(7) the Company delivers to the Trustee an Officers' Certificate and
an Option of Counsel, each stating that all conditions precedent provided
for relating to the legal defeasance option or the covenant defeasance
option have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
---------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. 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, including Special
Interest, on the Securities. Money and securities so held in trust are not
subject to Article X.
SECTION 8.04. 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, including Special Interest, that
remains unclaimed for two years, and, thereafter, Securityholders entitled to
the money must look to the Company for payment as general creditors.
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SECTION 8.05. 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 received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
--------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII 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 VIII 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 VIII; provided, however, that, if
-------- -------
the Company has made any payment of interest, including Special 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 9.01. Without Consent of Holders. The Company and the
---------------------------
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) 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;
83
(4) to add additional Note Guarantees with respect to the Securities
or to secure the Securities;
(5) 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;
(6) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA;
(7) to make any change that does not adversely affect the rights of
any Securityholder; or
(8) to provide for the issuance of the Exchange Securities, Private
Exchange Securities or Additional Securities, which shall have terms
substantially identical in all material respects to the Original Securities
(except that the transfer restrictions contained in the Original Securities
shall be modified or eliminated, as appropriate), and which shall be
treated, together with any outstanding Original Securities, as a single
issue of securities.
An amendment under this Section 9.01 may not make any change that
adversely affects the rights under Article X or Article XII 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 and the Company delivers to the Trustee an
Officers' Certificate stating that the requisite consent to such change has been
obtained.
After an amendment under this Section 9.01 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 9.01.
SECTION 9.02. With Consent of Holders. The Company, the Guarantors
------------------------
and the Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection
84
with a tender offer or exchange for the Securities). However, without the
consent of each Securityholder affected, an amendment may not:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the Stated Maturity of any
Securities or alter the provisions with respect to the redemption of the
Securities (other than provisions relating to Sections 4.06 and 4.08);
(3) reduce the rate of or change the time for payment of interest on
any Security;
(4) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount of the Securities and a waiver of the payment
default that resulted from such acceleration);
(5) make any Security payable in money other than that stated in the
Securities;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of or premium, if any, or interest on the Securities;
(7) waive a redemption payment with respect to any Security (other
than a payment required by Sections 4.06 or 4.08);
(8) amend or modify any Note Guarantees; or
(9) make any change in the foregoing amendment, supplement and waiver
provisions.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding unless
85
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 9.02 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 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
------------------------------------
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. 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 amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Securityholder.
An amendment or waiver becomes effective once both (i) the requisite number of
consents have been received by the Company or the Trustee and (ii) such
amendment or waiver has been executed by the Company and 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 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
--------------------------------------
changes the terms of a Security, the Trustee may require the Holder of the
Security
86
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 or the Trustee 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 appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
---------------------------
amendment authorized pursuant to this Article IX 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 any amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel from the Company
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Company
and the Guarantors enforceable against them in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any of
--------------------
its Subsidiaries shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any terms or provisions of the Securities, unless such consideration is offered
to be paid or agreed to be paid to all Holders of Securities which so consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
ARTICLE X
Subordination
-------------
SECTION 10.01. 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 X, to the prior payment in full of
all Senior Indebtedness of the Company, which shall include borrowings under the
Senior
87
Credit Facilities, whether outstanding on the Closing Date or thereafter
incurred, and that the subordination is for the benefit of and enforceable by
the holders of such 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 of the Company
shall rank senior to the Securities in accordance with the provisions set forth
herein. For purposes of this Article X, the Indebtedness evidenced by the
Securities shall be deemed to include the Special Interest payable pursuant to
the provisions set forth in the Securities and any Exchange and Registration
Rights Agreement. All provisions of this Article X shall be subject to Section
10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
-------------------------------------
distribution to creditors of the Company in a total or partial liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(1) the holders of Senior Indebtedness will be entitled to receive
payment in full in cash of all Obligations due in respect of such Senior
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the documentation governing the
applicable Senior Indebtedness whether or not the claim for such interest
is allowed as a claim after such filing) before Holders of Securities will
be entitled to receive any payment or distribution with respect to the
Securities; and
(2) until all Obligations with respect to Senior Indebtedness are paid
in full in cash, any payment or distribution to which Holders of Securities
would be entitled shall be made to the holders of Senior Indebtedness
(except that Holders of Securities may receive securities that are
subordinated at least to the same extent as the Securities to Senior
Indebtedness and to any securities issued in exchange for Senior
Indebtedness ("Subordinated Reorganization Securities") and Holders of
Securities may recover payments made from the trust described under Article
VIII).
SECTION 10.03. Default on Senior Indebtedness. The Company may not
-------------------------------
make any payment upon or in respect of the Securities and may not otherwise
purchase, redeem or
88
otherwise retire any Securities (except in Subordinated Reorganization
Securities or from the trust described in Section 8.02) or make any deposit
described in Section 8.02 if (i) a default in the payment of the principal of,
premium, if any, or interest on Designated Senior Indebtedness of the Company
(or any other Senior Indebtedness having a principal amount at the time of
determination in excess of $25,000,000) occurs and is continuing or (ii) any
other default occurs and is continuing with respect to Designated Senior
Indebtedness of the Company which permits holders of the Designated Senior
Indebtedness of the Company as to which such default relates to accelerate its
maturity and the Trustee receives a notice of such default (a "Payment Blockage
Notice") from the holders or the Representative of the holders of the Designated
Senior Indebtedness of the Company.
Payments on the Securities shall be resumed (a) in the case of a
payment default, upon the date on which such default is cured or waived and (b)
in the case of a nonpayment default, upon the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date on which the
applicable Payment Blockage Notice is received, unless the maturity of the
Designated Senior Indebtedness of the Company has been accelerated. No new
period of payment blockage may be commenced by a Payment Blockage Notice unless
and until 360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice.
SECTION 10.04. Acceleration of Payment of Securities. If payment of
--------------------------------------
the Securities is accelerated because of an Event of Default, the Company 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 X otherwise permits payment at that time.
SECTION 10.05. When Payment or Distribution Must Be Paid Over. If a
-----------------------------------------------
payment or distribution is made to Securityholders that because of this Article
X should not have been made to them, the Securityholders who receive the payment
or distribution shall hold it in trust for holders of Senior Indebtedness of the
Company and pay it over to them as their interests may appear.
89
SECTION 10.06. Subrogation. After all Senior Indebtedness of the
------------
Company is paid in full in cash and until the Securities are paid in full in
cash, Securityholders shall be subrogated to the rights of holders of such
Senior Indebtedness to receive distributions applicable to Senior Indebtedness.
A payment or distribution made under this Article X to holders of such Senior
Indebtedness which otherwise would have been made to Securityholders is not, as
between the Company and Securityholders, a payment by the Company on such Senior
Indebtedness.
SECTION 10.07. Relative Rights. This Article X defines the relative
----------------
rights of Securityholders and holders of Senior Indebtedness of the Company.
Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the obligation
of the Company, which is absolute and unconditional, to pay principal of
and interest, including Special Interest, in respect of, the Securities in
accordance with their terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive payments or distributions
otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company. No
---------------------------------------------
right of any holder of Senior Indebtedness of the Company 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 10.09. Rights of Trustee and Paying Agent. Notwithstanding
-----------------------------------
Section 10.03, 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 X. The Company, the Registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness of the Company may give the notice; provided,
--------
however, that, if an issue of Senior Indebtedness of the Company has a
-------
Representative, only the Representative may give the notice.
90
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee. The 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 X with
respect to any Senior Indebtedness of the Company which may at any time be held
by it, to the same extent as any other holder of such Senior Indebtedness; and
nothing in Article VII shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article X shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.10. Payment, Distribution or Notice to Representative.
--------------------------------------------------
Whenever a payment or distribution is to be made or a notice given to holders of
Senior Indebtedness of the Company, the payment or distribution may be made and
the notice given to their Representative (if any).
SECTION 10.11. Article X 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 X shall not be construed as
preventing the occurrence of a Default. Nothing in this Article X shall have
any effect on the right of the Securityholders or the Trustee to accelerate the
maturity of the Securities.
SECTION 10.12. 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 VIII 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 of the Company or
subject to the restrictions set forth in this Article X, 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 10.13. Trustee Entitled To Rely. Upon any payment or
-------------------------
distribution pursuant to this Article X, 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 10.02
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 of the Company for the
91
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such 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
X. 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 of the Company to participate in any payment or distribution
pursuant to this Article X, the Trustee may request such Person to furnish
evidence (which evidence may include an Officers' Certificate from the Company)
to the reasonable satisfaction of the Trustee as to the amount of such 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 X, 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 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article X.
SECTION 10.14. 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 of the Company as provided in this Article X and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. 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 of the Company 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 of the Company shall be entitled by virtue of this Article X or
otherwise.
SECTION 10.16. 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 of the Company, whether such Senior Indebtedness was created or
acquired
92
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 such 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.
SECTION 10.17. Trustee's Compensation Not Prejudiced. Nothing in
--------------------------------------
this Article X shall apply to amounts due to the Trustee pursuant to other
sections of this Indenture.
ARTICLE XI
Note Guarantees
---------------
SECTION 11.01. Note Guarantees. Each Guarantor hereby jointly and
----------------
severally unconditionally and irrevocably guarantees, as a primary obligor and
not merely as a surety, to each Holder and to the Trustee and its successors and
assigns (a) the full and punctual payment of principal of and interest,
including Special Interest, in respect of the Securities when due, whether at
Stated Maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Company under this Indenture (including obligations
to the Trustee) and the Securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Company whether
for expenses, indemnification or otherwise under this Indenture and the
Securities (all the foregoing being hereinafter collectively called the
"Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from each such Guarantor, and that each such Guarantor shall
remain bound under this Article XI notwithstanding any extension or renewal of
any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from and
protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Securities or the Guaranteed Obligations. The obligations of each
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Securities or
any other agreement or otherwise; (b) any extension or renewal of any thereof;
93
(c) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (e) the failure of any Holder or Trustee to exercise
any right or remedy against any other guarantor of the Guaranteed Obligations;
or (f) any change in the ownership of such Guarantor, except as provided in
Section 11.02(b).
Each Guarantor hereby waives any right to which it may be entitled to
have its obligations hereunder divided among the Guarantors, such that such
Guarantor's obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Company first be used and depleted as payment of the Company's or such
Guarantor's obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Company be sued prior to an action
being initiated against such Guarantor.
Each Guarantor further agrees that its Note Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
The Note Guarantee of each Guarantor is, to the extent and in the
manner set forth in Article XII, subordinated and subject in right of payment to
the prior payment in full in cash of the principal of and premium, if any, and
interest on all Senior Indebtedness of the relevant Guarantor and is made
subject to such provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 11.02 and 11.06,
the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of set off, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the
94
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, wilful 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 any Guarantor or would otherwise operate as a discharge
of any Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee shall remain in full
force and effect until payment in full of all the Guaranteed Obligations. Each
Guarantor further agrees that its Note 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 Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee 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 or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest on, including Special Interest, any Guaranteed 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 Guaranteed
Obligation, each Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal
amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such
Guaranteed Obligations (but only to the extent not prohibited by law) and (iii)
all other monetary obligations of the Company to the Holders and the Trustee.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guaranteed Obligations
guaranteed hereby until payment in full of all Guaranteed Obligations and all
obligations to which the Guaranteed Obligations are subordinated as provided in
Article XII. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of any Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect
95
of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article VI, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section 11.01.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.01.
Upon request of the Trustee, each Guarantor shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
SECTION 11.02. Limitation on Liability; Release of Domestic
--------------------------------------------
Subsidiary Guarantors. (a) Any term or provision of this Indenture to the
----------------------
contrary notwithstanding, the maximum, aggregate amount of the Guaranteed
Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Indenture, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) In the event of a sale or other disposition of all or
substantially all of the assets of any Domestic Subsidiary Guarantor, by way of
merger, consolidation or otherwise, or a sale or other disposition of all of the
Capital Stock of any Domestic Subsidiary Guarantor, by way of merger,
consolidation or otherwise, such Domestic Subsidiary Guarantor (in the event of
a sale or other disposition of all of the Capital Stock of such Domestic
Subsidiary Guarantor) shall be released and relieved of its Obligations under
its Note Guarantee or the Person acquiring the property (in the event of a sale
or other disposition of all or substantially all of the assets of such Domestic
Subsidiary Guarantor) (other than a Domestic Subsidiary Guarantor) shall not be
required to enter into a Domestic Subsidiary Guarantee; provided, in each case,
--------
that such transaction is carried out pursuant to and in accordance with Section
4.06 and Section 5.01. Upon delivery by the Company to the Trustee of an
Officers' Certificate and Opinion of Counsel to the effect that such sale or
other disposition was made by the Company in accordance with the provisions of
this Indenture, including without limitation Section 4.06 and Section 5.01
hereof, the Trustee shall
96
execute any documents reasonably required in order to evidence the release of
any such Domestic Subsidiary Guarantor from its obligations under its Domestic
Subsidiary Guarantee. Any Domestic Subsidiary Guarantor not released from its
obligations under its Domestic Subsidiary Guarantee shall remain liable for the
full amount of principal of and interest on the Securities and for the other
obligations of any Guarantor under this Indenture as provided in this Article
XI.
SECTION 11.03. Successors and Assigns. This Article XI shall be
-----------------------
binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture 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 Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the part
----------
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article XI 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 Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article XI at law,
in equity, by statute or otherwise.
SECTION 11.05. Modification. No modification, amendment or waiver of
-------------
any provision of this Article XI, nor the consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in the same, similar or other
circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
----------------------------------------------
Domestic Subsidiary Guarantors. Each Domestic Subsidiary which is required to
-------------------------------
become a Guarantor pursuant to Section 4.11 shall promptly execute and deliver
to the Trustee a supplemental indenture in the form of Exhibit C hereto pursuant
to which such Subsidiary shall
97
become a Guarantor under this Article XI and shall guarantee the Guaranteed
Obligations hereby. Concurrently with the execution and delivery of such
supplemental indenture, the Company shall deliver to the Trustee an Opinion of
Counsel and an Officers' Certificate to the effect that such supplemental
indenture has been duly authorized, executed and delivered by such Subsidiary
and that, subject to the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principles of equity, whether considered in a
proceeding at law or in equity, the Note Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms.
ARTICLE XII
Subordination of the Note Guarantees
------------------------------------
SECTION 12.01. Agreement To Subordinate. Each Guarantor agrees, and
-------------------------
each Securityholder by accepting a Security agrees, that the obligations of a
Guarantor hereunder are subordinated in right of payment, to the extent and in
the manner provided in this Article XII, to the prior payment in full of all
Senior Indebtedness of such Guarantor and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness of such
Guarantor. The obligations hereunder with respect to a Guarantor shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of such
---- -----
Guarantor and shall rank senior to all existing and future Subordinated
Obligations of such Guarantor; and only Indebtedness of such Guarantor that is
Senior Indebtedness of such Guarantor shall rank senior to the obligations of
such Guarantor in accordance with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
-------------------------------------
distribution to creditors of a Guarantor in a total or partial liquidation or
dissolution of such Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor or its property,
an assignment for the benefit of creditors or any marshaling of such Guarantor's
assets and liabilities:
(1) the holders of Senior Indebtedness of such Guarantor will be
entitled to receive payment in full
98
in cash of all Obligations due in respect of such Senior Indebtedness
(including interest after the commencement of any such proceeding at the
rate specified in the documentation governing the applicable Senior
Indebtedness whether or not the claim for such interest is allowed as a
claim after such filing) before Holders of Securities will be entitled to
receive any payment or distribution with respect to the Note Guarantee; and
(2) until all Obligations with respect to Senior Indebtedness of such
Guarantor are paid in full in cash, any payment or distribution that would
have been made under the Note Guarantee shall be made to the holders of
such Senior Indebtedness (except that Holders of Securities may receive
Subordinated Reorganization Securities of such Guarantor).
SECTION 12.03. Default on Designated Senior Indebtedness of a
----------------------------------------------
Guarantor. A Guarantor shall not make any payment upon or in respect of its
----------
Note Guarantee (except in Subordinated Reorganization Securities of such
Guarantor), if (i) a default in the payment of the principal of, premium, if
any, or interest on Designated Senior Indebtedness of such Guarantor (or any
other Senior Indebtedness having a principal amount at the time of determination
in excess of $25,000,000) occurs and is continuing or (ii) any other default
occurs and is continuing with respect to Designated Senior Indebtedness of such
Guarantor which permits holders of the Designated Senior Indebtedness of such
Guarantor as to which such default relates to accelerate its maturity and the
Trustee receives a Payment Blockage Notice from the holders or the
representative of the holders of the Designated Senior Indebtedness of such
Guarantor. Payments under the applicable Note Guarantee may and shall be resumed
(a) in the case of a payment default, upon the date on which such default is
cured or waived and (b) in the case of a nonpayment default, upon the earlier of
the date on which such nonpayment default is cured or waived or 179 days after
the date on which the applicable Payment Blockage Notice is received, unless the
maturity of the Designated Senior Indebtedness of such Guarantor has been
accelerated. No new period of payment blockage may be commenced by a Payment
Blockage Notice unless and until 360 days have elapsed since the effectiveness
of the immediately prior Payment Blockage Notice.
SECTION 12.04. Demand for Payment. If payment of the Securities is
-------------------
accelerated because of an Event of Default
99
and a demand for payment is made on a Guarantor pursuant to Article XI, such
Guarantor shall promptly notify the holders of the Designated Senior
Indebtedness of such Guarantor (or the Representative of such holders) of such
demand. If any Designated Senior Indebtedness of such Guarantor is outstanding,
such Guarantor may not pay its Note Guarantee until five Business Days after
such holders or the Representative of the holders of the Designated Senior
Indebtedness of such Guarantor receive notice of such demand and, thereafter,
may pay its Note Guarantee only if this Article XII otherwise permits payment at
that time.
SECTION 12.05. When Payment or Distribution Must Be Paid Over. If a
-----------------------------------------------
payment or distribution is made to Securityholders that because of this Article
XII should not have been made to them, the Securityholders who receive the
payment or distribution shall hold such payment or distribution in trust for
holders of the Senior Indebtedness of the relevant Guarantor and pay it over to
them as their interests may appear.
SECTION 12.06. Subrogation. After all Designated Senior Indebtedness
------------
of a Guarantor is paid in full in cash and until the Securities are paid in full
in cash, Securityholders shall be subrogated to the rights of holders of
Designated Senior Indebtedness of such Guarantor to receive distributions
applicable to Designated Senior Indebtedness of such Guarantor. A payment or
distribution made under this Article XII to holders of Designated Senior
Indebtedness of such Guarantor which otherwise would have been made to
Securityholders is not, as between such Guarantor and Securityholders, a payment
by such Guarantor on Designated Senior Indebtedness of such Guarantor.
SECTION 12.07. Relative Rights. This Article XII defines the
----------------
relative rights of Securityholders and holders of Designated Senior Indebtedness
of a Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Guarantor and Securityholders, the obligation
of a Guarantor which is absolute and unconditional, to make payments with
respect to the Guaranteed Obligations to the extent set forth in Article
XI; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by a Guarantor under its obligations with
respect to the Guaranteed Obligations, subject to the rights of holders of
Designated Senior Indebtedness of such
100
Guarantor to receive distributions otherwise payable to Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by a Guarantor. No
-------------------------------------------------
right of any holder of Designated Senior Indebtedness of a Guarantor to enforce
the subordination of the obligations of such Guarantor hereunder shall be
impaired by any act or failure to act by such Guarantor or by its failure to
comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
-----------------------------------
Section 12.03, the Trustee or the 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 XII. A Guarantor, the Registrar, the Paying Agent, a Representative or
a holder of Designated Senior Indebtedness of a Guarantor may give the notice;
provided, however, that if an issue of Designated Senior Indebtedness of a
-------- -------
Guarantor has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of a Guarantor with the same rights it would have if it were not
Trustee. The 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 XII
with respect to any Senior Indebtedness of a Guarantor which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness of
such Guarantor; and nothing in Article VII shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article XII shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.07.
SECTION 12.10. Payment, Distribution or Notice to Representative.
--------------------------------------------------
Whenever a payment or distribution is to be made or a notice given to holders of
Senior Indebtedness of a Guarantor, the payment or distribution may be made and
the notice given to their Representative (if any).
SECTION 12.11. Article XII Not To Prevent Events of Default or Limit
-----------------------------------------------------
Right To Accelerate. The failure of a Guarantor to make a payment on any of its
--------------------
obligations by reason of any provision in this Article XII shall not be
construed as preventing the occurrence of a default by such
101
Guarantor under such obligations. Nothing in this Article XII shall have any
effect on the right of the Securityholders or the Trustee to make a demand for
payment on a Guarantor pursuant to Article XI.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
-------------------------
distribution pursuant to this Article XII, 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 12.02
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 Designated
Senior Indebtedness of a Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Designated Senior Indebtedness such Guarantor and other Indebtedness of a
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XII. 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 Designated
Senior Indebtedness of a Guarantor to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Designated Senior Indebtedness of such Guarantor 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 XII,
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 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article XII.
SECTION 12.13. Trustee To Effectuate Subordination. Each
------------------------------------
Securityholder by accepting a Security authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders and the
holders of Designated Senior Indebtedness of each of the Guarantors as provided
in this Article XII and appoints the Trustee as attorney-in-fact for any and all
such purposes.
102
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness of a Guarantor. The Trustee shall not be deemed to owe any
----------------------------
fiduciary duty to the holders of Senior Indebtedness of a Guarantor and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Securityholders or the relevant Guarantor or any other Person, money or
assets to which any holders of Senior Indebtedness of such Guarantor shall be
entitled by virtue of this Article XII or otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
-----------------------------------------------
Guarantor 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 of a Guarantor, 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.
SECTION 12.16. Defeasance. The terms of this Article XII shall not
-----------
apply to payments from money or the proceeds of U.S. Government Obligations held
in trust by the Trustee for the payment of principal of and interest on the
Securities pursuant to the provisions described in Section 8.03.
ARTICLE XIII
Miscellaneous
-------------
SECTION 13.01. 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.
103
SECTION 13.02. 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:
Eagle Family Foods, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopier no.: (000) 000-0000
Attention of: Chief Financial Officer
if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier no.: (000) 000-0000
Attention of: Corporate Trust Administration
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.
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 13.03. Communication by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA (S) 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by
104
the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating 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
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05. 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:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. 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, any Guarantor or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any Guarantor 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 knows are so
owned shall be so
105
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
---------------
Sunday or a day on which banking institutions are not required to be open in the
State of New York. 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 13.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
--------------
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 13.10. No Recourse Against Others. No director, officer,
---------------------------
employee, incorporator or stockholder of the Company or Holdings, as such, shall
have any liability for any obligations of the Company or Holdings under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
SECTION 13.11. Successors. All agreements of the Company and each
-----------
Guarantor in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. 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 13.13. Table of Contents; Headings. The table of contents,
----------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted
106
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.
107
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
EAGLE FAMILY FOODS, INC.,
by /s/ Xxxx O'X. Xxxxxx
-------------------------------------
Name: Xxxx O'X. Xxxxxx
Title: President and Chief Executive Office
EAGLE FAMILY FOODS HOLDINGS, INC.,
by /s/ Xxxx O'X. Xxxxxx
-------------------------------------
Name: Xxxx O'X. Xxxxxx
Title: President and Chief Executive Office
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee,
by /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
-------------------------------------------
ADDITIONAL SECURITIES, PRIVATE EXCHANGE SECURITIES
--------------------------------------------------
AND EXCHANGE SECURITIES
-----------------------
1. Definitions
-----------
1.1 Definitions
-----------
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depositary for such Global
Security, Euroclear and Cedel, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security bearing the Restricted Securities Legend (if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Exchange and Registration Rights Agreement" means (i) the Exchange
and Registration Rights Agreement, dated as of the Closing Date, among the
Company, Holdings and the Initial Purchasers and (ii) any other similar exchange
and registration rights agreement relating to Additional Securities.
"Exchange Offer" means a registered exchange offer for Initial
Securities undertaken by the Company pursuant to an Exchange and Registration
Rights Agreement.
"Global Securities Legend" means the legend set forth under that
caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
2
"Initial Purchasers" means Chase Securities Inc. and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated.
"Private Exchange" means an offer by the Company, pursuant to an
Exchange and Registration Rights Agreement, to issue and deliver to certain
purchasers, in exchange for the Initial Securities held by such purchasers as
part of their initial distribution, a like aggregate principal amount of Private
Exchange Securities.
"Private Exchange Securities" means, collectively, debt securities of
the Company that are identical in all material respects to Exchange Securities,
except for the transfer restrictions relating to such Private Exchange
Securities, issued by the Company (under the same indenture as the Exchange
Securities) simultaneously with the delivery of the Exchange Securities in an
Exchange Offer, to any Holder that holds any Initial Securities acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or to any Holder that is not
entitled to participate in an Exchange Offer, upon the request of any such
Holder, in exchange for a like aggregate principal amount of Initial Securities
held by such Holder.
"Purchase Agreement" means (i) the Purchase Agreement dated January
16, 1998, among the Company, Holdings and the Initial Purchasers and (ii) any
other similar purchase agreement relating to Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Regulation S Securities" means all Initial Securities offered and
sold outside the United States in reliance on Regulation S under the Securities
Act.
"Restricted Period", with respect to any Securities, means the period
of 40 consecutive days beginning on and including the later of (i) the day on
which such Securities are first offered to persons other than distributors (as
defined in Regulation S under the Securities Act) in reliance on Regulation S
and (ii) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in Section
2.3(e)(i) herein.
3
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and sold
to QIB's in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depositary) or any successor person thereto, who
shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed by
the Company in connection with the offer and sale of Initial Securities pursuant
to an Exchange and Registration Rights Agreement.
"Transfer Restricted Securities" means (i) each Initial Security until
the date on which such Security has been exchanged for a freely transferable
Exchange Security in an Exchange Offer, (ii) each Initial Security or Private
Exchange Security until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with a shelf registration
statement on an appropriate form under the Securities Act relating to the offer
and sale of the Transfer Restricted Securities by the Holders thereof from time
to time in accordance with the methods of distribution set forth in such
registration statement, (iii) each Initial Security or Private Exchange Security
until the date on which it is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act or (iv) any other Security that bears or is required to bear the
Restricted Securities Legend. Upon the occurrence of any of the events
described in clause (i), (ii) or (iii), the Company shall deliver to the Trustee
an Officers' Certificate stating that such event has occurred.
4
1.2 Other Definitions
-----------------
Defined in
----------
Term Section:
---- -------
"Accredited Investor"................................... 2.3(e)(i)
"Agent Members"......................................... 2.1(b)
"clearing agency"....................................... 2.4(a)
"IAI Global Security"................................... 2.1(a)
"Global Security"....................................... 2.1(a)
"Permanent Regulation S Global Security"................ 2.3(d)(ii)
"Regulation S".......................................... 2.1
"Rule 144A"............................................. 2.1
"Rule 144A Global Security"............................. 2.1(a)
"Temporary Regulation S Global Security"................ 2.1(a)
2. The Securities
--------------
2.1 Form and Dating
---------------
The Initial Securities offered on the date hereof will be issued by
the Company pursuant to the Indenture and offered and sold by the Company, from
time to time, pursuant to a Purchase Agreement. The Initial Securities offered
on the date hereof will be resold, initially only to QIBs in reliance on Rule
144A under the Securities Act ("Rule 144A") and in reliance on Regulation S
under the Securities Act ("Regulation S"). Such Initial Securities may
thereafter be transferred to, among others, QIBs, purchasers in reliance on
Regulation S and, except as set forth below, IAIs under Rule 501. Additional
Securities offered after the Closing Date may be offered and sold by the Company
from time to time pursuant to one or more Purchase Agreements in accordance with
applicable law.
(a) Global Securities. Rule 144A Securities shall be issued
------------------
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
temporary global Securities (collectively, the "Temporary Regulation S Global
Security"), in each case without interest coupons and bearing the Global
Securities Legend and Restricted Securities Legend, which shall be deposited on
behalf of the purchasers of the Securities represented thereby with the
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Company and authenticated by the Trustee
as provided in
5
this Indenture. One or more global securities in definitive, fully registered
form without interest coupons and bearing the Global Securities Legend and the
Restricted Securities Legend (collectively, the "IAI Global Security") shall
also be issued on the Issue Date, deposited with the Securities Custodian, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as provided in this
Indenture to accommodate transfers of beneficial interests in the Securities to
IAI's subsequent to the initial distribution. Beneficial ownership interests in
the Temporary Regulation S Global Security will not be exchangeable for
interests in the Rule 144A Global Security, the IAI Global Security, a Permanent
Regulation S Global Security (as defined below) or any other Security without a
Restricted Securities Legend until the expiration of the Restricted Period. Upon
the expiration of the Restricted Period, beneficial interests in the Securities
represented by the Temporary Regulation S Global Security may be exchanged for
interests in the Permanent Regulation S Global Security as described below in
Section 2.3(d). The Rule 144A Global Security, the IAI Global Security, the
Temporary Regulation S Global Security and the Permanent Regulation S Global
Security are each referred to herein as a Global Security and are collectively
referred to herein as "Global Securities." The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
----------------------
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b) and pursuant to an order of the Company, authenticate and
deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depositary for such Global Security or Global Securities or the
nominee of such Depositary and (b) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions or held by the Trustee
as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or by the Trustee as Securities Custodian or
under such Global Security, and the Depositary may be treated by the Company,
the Trustee and any agent of the
6
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 Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.3 or 2.4,
----------------------
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make
---------------
available for delivery, upon receipt of an Officers' Certificate from the
Company, (1) Original Securities for original issue on the Closing Date in an
aggregate principal amount of $115,000,000, (2) subject to the terms of this
Indenture, Additional Securities in an aggregate principal amount of up to
$150,000,000 and (3) the (A) Exchange Securities for issue only in an Exchange
Offer, and (B) Private Exchange Securities for issue only in a Private Exchange,
in the case of each of (A) and (B) pursuant to an Exchange and Registration
Rights Agreement and for a like principal amount of Initial Securities exchanged
pursuant thereto. Such Officers' Certificate shall specify the amount of the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated, whether or not the Securities are to bear the
Restricted Securities Legend and whether the Securities are to be Initial
Securities or Exchange Securities. In addition, an Opinion of Counsel with
respect to the issuance of such Additional Securities, which Opinion of Counsel
shall be substantially in the form of the Opinion of Counsel delivered on behalf
of the Company on the Closing Date, shall be delivered to the Trustee at the
time of the delivery of such Officers' Certificate. The aggregate principal
amount of Securities outstanding at any time may not exceed $265,000,000, except
as provided in Section 2.08 of this Indenture. Notwithstanding anything to the
contrary in this Appendix A or otherwise in this Indenture, any issuance of
Additional Securities after the Closing Date shall be in a principal amount of
at least $10,000,000, whether such Additional Securities are of the same or a
different series that the Original Securities.
7
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
---------------------- -----------------------------------
Securities. When Definitive Securities are presented to the 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 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:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or his attorney duly authorized in
writing; and
(ii) are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act, pursuant to Section 2.3(b)
or pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive 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
the form set forth on the reverse side of the Initial Security); or
(B) if such Definitive Securities are being transferred to the
Company, a certification to that effect (in the form set forth on the
reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred pursuant
to an exemption from registration in accordance with Rule 144 under
the Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (i) a certification
to that effect (in the form set forth on the reverse side of the
Initial Security) and (ii) if the Company so requests, an Opinion of
Counsel or other
8
evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section 2.3(d)(i).
(b) 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 a written instrument
of transfer in form reasonably satisfactory to the Company and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side of the
Initial Security) that such Definitive Security is being transferred (A) to
a QIB in accordance with Rule 144A, (B) to an IAI that has furnished to the
Trustee a signed letter substantially in the form of Exhibit D to this
Indenture or (C) outside the United States in an offshore transaction
within the meaning of Regulation S and in compliance with Rule 904 under
the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the Depositary
account to be credited with such increase,
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 Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section 2.4, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Security in
the appropriate principal amount.
9
(c) Transfer and Exchange of Global Securities. (i) The transfer and
-------------------------------------------
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Security and
such account shall be credited in accordance with such instructions with a
beneficial interest in such Global Security and the account of the Person making
the transfer shall be debited by an amount equal to the beneficial interest in
the Global Security being transferred. In the case of a transfer of a
beneficial interest in either the Permanent Regulation S Global Security or the
Rule 144A Global Security for an interest in the IAI Global Security, the
transferee must furnish a signed letter substantially in the form of Exhibit D
to this Indenture to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Security to a beneficial interest in another Global Security,
the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such
interest is being transferred in an amount equal to the principal amount of
the interest to be so transferred, and the Registrar shall reflect on its
books and records the date and a corresponding decrease in the principal
amount of Global Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.4), a Global Security may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(iv) In the event that a Global Security is exchanged for Securities
in definitive registered form pursuant to Section 2.4 prior to the
consummation of an Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities may
be exchanged only in accordance
10
with such procedures as are substantially consistent with the provisions of
this Section 2.3 (including the certification requirements set forth on the
reverse of the Initial Securities intended to ensure that such transfers
comply with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(d) Restrictions on Transfer of Temporary Regulation S Global
---------------------------------------------------------
Security. (i) Prior to the expiration of the Restricted Period, interests in
---------
the Temporary Regulation S Global Security may only be held through Euroclear or
Cedel. During the Restricted Period, beneficial ownership interests in the
Temporary Regulation S Global Security may only be sold, pledged or transferred
through Euroclear or Cedel in accordance with the Applicable Procedures and only
(A) to the Company, (B) so long as such security is eligible for resale pursuant
to Rule 144A, to a person whom the selling holder reasonably believes is a QIB
that purchases for its own account or for the account of a QIB to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, (C) in an offshore transaction in accordance with Regulation S, (D)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (E) to an IAI purchasing for
its own account, of for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (F) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Regulation S Temporary Global Note to a transferee who takes
delivery of such interest through the Rule 144A Global Note or the IAI Global
Note will be made only in accordance with Applicable Procedures and upon receipt
by the Trustee of a written certification from the transferor of the beneficial
interest in the form provided on the reverse of the Initial Security to the
effect that such transfer is being made to (i) a person whom the transferor
reasonably believes is a QIB within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A or (ii) an IAI purchasing for its own
account, or for the account of such an IAI, in a minimum principal amount of the
Securities of $250,000. Such written certification will no longer be required
after the expiration of the Restricted Period.
11
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Temporary Regulation S Global Security may be
exchanged for interests in a permanent global security in definitive, fully
registered form without the Restricted Security Legend (the "Permanent
Regulation S Global Security") upon certification to the Trustee that such
interests are owned either by non-U.S. persons or U.S. persons who
purchased such interests pursuant to an exemption from, or transfer not
subject to, the registration requirements of the Securities Act. Upon the
expiration of the Restricted Period, the Trustee shall prepare and
authenticate the Permanent Regulation S Global Security in accordance with
the terms of this Indenture and deliver it to the Company for execution.
The Company shall then execute the Permanent Regulation S Global Security
and return it to the Trustee as Securities Custodian. Any transfers of
beneficial ownership interests in the Temporary Regulation S Global
Security made in reliance on Regulation S shall thenceforth be recorded by
the Trustee by making an appropriate increase in the principal amount of
the Permanent Regulation S Global Security and a corresponding decrease in
the principal amount of the Temporary Regulation S Global Security. At such
time as the principal amount of the Temporary Regulation S Global Security
has been reduced to zero, the Trustee shall cancel the Temporary Regulation
S Global Security and deliver it to the Company.
(e) Legend. (i) Except as permitted by the following paragraphs (ii),
-------
(iii) or (iv), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange therefor or in
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"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND
ANNIVERSARY OF THE ISSUANCE HEREOF (OR OF A PREDECESSOR SECURITY HERETO) OR
(Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING
THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER
THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A
PERSON WHOM THE
12
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION S")
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS
ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION,
AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (5) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES
IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY
IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT
OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR"
AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND
THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2)
OF RULE 902 UNDER) REGULATION S."
Each Definitive Security will also bear the following additional
legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION
AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
13
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Security that
is a Definitive Security pursuant to Rule 144 under the Securities Act the
Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not bear the
legends set forth above and rescind any restriction on the transfer of such
Transfer Restricted Security if the Holder certifies in writing to the
Registrar that its request for such exchange was made in reliance on Rule
144 (such certification to be in the form set forth on the reverse of the
Initial Security).
(iii) Upon a sale or transfer of any Initial Security acquired
pursuant to Regulation S, all requirements that such Initial Security bear
the Restricted Securities Legend will cease to apply and the requirements
requiring any such Initial Security be issued in global form will continue
to apply.
(iv) Any Additional Securities sold in a registered offering shall
not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time as
---------------------------------------------
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, 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) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
------------------------------------------------------
Securities.
-----------
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee
14
shall authenticate, Definitive Securities and Global Securities at the
Registrar's request.
(ii) 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 (other than any such transfer taxes, assessments or
similar governmental charge payable upon exchange or transfer pursuant to
Section 3.06, 4.06, 4.08 and 9.05).
(iii) The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15
days before a selection of Securities to be redeemed.
(iv) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Registrar and the Paying Agent
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 Registrar or the Paying Agent shall be affected
by notice to the contrary.
(v) 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 same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
-----------------------------
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records
of the Depositary 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 Depositary) of any notice (including any notice of
15
redemption or repurchase) 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 the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through
the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Depositary 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.
2.4 Definitive Securities. (a) A Global Security deposited with the
----------------------
Depositary or with the Trustee as Securities Custodian pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the Company
that it is unwilling or unable to continue as a Depositary for such Global
Security or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
16
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depositary shall direct.
Any certificated Initial Security in the form of a Definitive Security delivered
in exchange for an interest in the Global Security shall, except as otherwise
provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Securities in any fully registered
form without interest coupons.
EXHIBIT A
[FORM OF] FACE OF INITIAL SECURITY
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR OF A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
("REGULATION S") (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
2
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED
BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT CERTAIN HOLDERS
SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY PURSUANT TO THIS
CLAUSE (4) PRIOR TO THE EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN THE
MEANING OF RULE 903(c)(3) OF REGULATION S), (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2) OF
RULE 902 UNDER) REGULATION S.
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.]
[FORM OF] FACE OF SECURITY
No. $__________
8 3/4% Senior Subordinated Note due 2008
CUSIP No. ______
EAGLE FAMILY FOODS, INC., a Delaware corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum of Dollars
on January 15, 2008.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
2
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
EAGLE FAMILY FOODS, INC.,
by _____________________________
Name:
Title:
[CORPORATE SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by _________________________
Authorized Signatory
[FORM OF] REVERSE SIDE OF SECURITY
8 3/4% Senior Subordinated Note due 2008
1. Interest
--------
(a) EAGLE FAMILY FOODS, 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 January 15 and July 15 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 January 23, 1998.
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 plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Special Interest. The holder of this Security is entitled to the
-----------------
benefits of an Exchange and Registration Rights Agreement, dated as of January
23, 1998, among the Company, Eagle Family Foods Holdings, Inc., (the
"Guarantor") and the Initial Purchasers named therein (the "Exchange and
Registration Rights Agreement"). Capitalized terms used in this paragraph (b)
but not otherwise defined have the meanings assigned to them in the Exchange and
Registration Rights Agreement. If (i) the Shelf Registration Statement or
Exchange Offer Registration Statement, as applicable, under the Exchange and
Registration Rights Agreement is not filed with the Commission on or prior to 90
days after the date of the Indenture, (ii) the Exchange Offer Registration
Statement or, as the case may be, the Shelf Registration Statement, is not
declared effective within 150 days after the date of the Indenture, (iii) the
Exchange Offer is not consummated on or prior to 180 days after the date of the
Indenture, or (iv) the Shelf Registration Statement is filed and declared
effective within 180 days after the date of the Indenture 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
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), the Company will pay
Special Interest to each holder of Transfer Restricted Securities, during the
period of such
2
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 Special Interest 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
Special Interest will cease. The Trustee shall have no responsibility with
respect to the determination of the amount of any such Special Interest.
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 January 1 or July 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 of America that at the time of payment is legal
tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company no later than five business
days prior to the relevant due date for payment. The Company will make all
payments in respect of a certificated Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made by wire
-------- -------
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than five business days prior to the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and
3
change the Registrar or any Paying Agent without notice. The Company or any of
its domestically organized Wholly Owned Subsidiaries may act as Registrar,
transfer agent or Paying Agent.
4. Indenture
---------
The Company issued the Securities under an Indenture dated as of
January 23, 1998 (the "Indenture"), among the Company, the Guarantors 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. (S)(S) 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 senior subordinated unsecured obligations of the
Company limited to $265,000,000 aggregate principal amount at any one time
outstanding (subject to Section 2.08 of the Indenture), of which $115,000,000 in
aggregate principal were initially issued on January 23, 1998. 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 Initial Securities. 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 ability of the Company and its Subsidiaries
to, among other things, make certain Investments and other Restricted Payments,
pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by
Subsidiaries of the Company, issue or sell shares of capital stock of such
Subsidiaries, enter into or permit certain transactions with Affiliates, enter
into Sale and Leaseback Transactions, create or incur Liens and make asset
sales. The Indenture also imposes limitations on the ability of the Company to
consolidate or merge with or into any other Person or convey, transfer or lease
all or substantially all of the property of the Company.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
4
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors have, jointly and severally,
unconditionally guaranteed the Guaranteed Obligations on a senior subordinated
basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in the following paragraph, the Securities will
not be redeemable at the option of the Company prior to January 15, 2003.
Thereafter, the Securities will be redeemable at the option of the Company, in
whole or in part, on not less than 30 nor more than 60 days' prior notice, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest (if any), including Special Interest, 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), if
redeemed during the 12-month period commencing on January 15 of the years set
forth below:
Redemption
Year Price
---- ----------
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000%
In addition, at any time and from time to time on or prior to January
15, 2002, the Company may (but shall not have the obligation to) redeem up to
35% of the original aggregate principal amount of the Securities (calculated
giving effect to any issuance of Additional Securities) at a redemption price of
108.75% of the original principal amount thereof, 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) with the proceeds of one or more Public Equity Offerings made by the
Company or of a capital contribution made by Holdings to the common equity
capital of the Company with the net proceeds of a Public Equity Offering made by
Holdings; provided that at least 65% of the aggregate principal amount of
--------
Securities (calculated giving effect to any issuance of Additional Securities)
remain outstanding immediately after the occurrence of such redemption; and
provided, further, that such redemption shall occur within 75 days of the date
-------- -------
of the closing of such Public Equity Offering.
5
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before a date for redemption to each Holder of
Securities to be redeemed at such Holder's 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.
8. Repurchase of Securities at the Option of Holders upon Change of Control
------------------------------------------------------------------------
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 equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
9. 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 and each Guarantor
agrees, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such purpose.
6
10. 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. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes 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 to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed or 15 days before an interest payment
date.
11. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
it for all purposes.
12. 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.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time may terminate
some of or all 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 and interest on the Securities to redemption or maturity,
as the case may be.
14. Amendment, Waiver
-----------------
Except as provided in the next two succeeding paragraphs, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Securities), and any
7
existing default or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including consents obtained
in connection with a tender offer or exchange offer for Securities).
Without the consent of each Holder affected, an amendment, supplement
or waiver may not (with respect to any Securities held by a nonconsenting
Holder): (i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver; (ii) reduce the principal of or
change the Stated Maturity of any Securities or alter the provisions with
respect to the redemption of the Securities (other than provisions relating to
Sections 4.06 and 4.08 of the Indenture); (iii) reduce the rate of or change the
time for payment of interest on any Security; (iv) waive a Default or Event of
Default in the payment of principal of or premium, if any, or interest on the
Securities (except a rescission of acceleration of the Securities by the Holders
of at least a majority in aggregate principal amount of the Securities and a
waiver of the payment default that resulted from such acceleration); (v) make
any Security payable in money other than that stated in the Securities; (vi)
make any change in the provisions of the Indenture relating to waivers of past
Defaults or the rights of Holders of Securities to receive payments of principal
of or premium, if any, or interest on the Securities; (vii) waive a redemption
payment with respect to any Security (other than a payment required by Sections
4.06 or 4.08 of the Indenture); (viii) amend or modify any Note Guarantees; or
(ix) make any change in the foregoing amendment, supplement and waiver
provisions.
Notwithstanding the foregoing, without the consent of any Holder of
Securities, the Company and the Trustee may amend or supplement the Indenture to
cure any ambiguity, omission, defect or inconsistency, to comply with Article V
of the Indenture, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to add additional Note Guarantees with respect
to the Securities or to secure the Securities, 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, to comply with any requirements of the SEC in
connection with qualifying, or maintaining the qualification of, the Indenture
under the TIA, to make any change that does not adversely affect the rights of
any Holder of Securities or to provide for the issuance of or to provide
8
for the issuance of the Exchange Securities, Private Exchange Securities or
Additional Securities.
15. Defaults and Remedies
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities 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
Securities may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in aggregate principal amount of the
Securities, by written notice to the Trustee and the Company, may rescind any
declaration of 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 the acceleration.
16. 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.
17. No Recourse Against Others
--------------------------
No director, officer, employee, incorporator or stockholder of the
Company or Holdings, as such, shall have any liability for any obligations of
the Company or Holdings under the Securities or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Securities by accepting a Security waives and releases all such
liability. The waiver
9
and release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the Federal securities
laws, and it is the view of the SEC that such waiver is against public policy.
18. 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 with its manual signature.
19. 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).
20. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. 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 Holder of Securities upon written
request and without charge to the Holder a copy of the Indenture which has in it
the text of this Security.
10
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: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:
Date: ___________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
11
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 Depositary 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.
12
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [_] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
(4) [_] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933; or
(5) [_] to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that
has furnished to the Trustee a signed letter containing certain
representations and agreements; or
(6) [_] pursuant to another available exemption from registration provided
by Rule 144 under the Securities Act of 1933.
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 may require, prior to registering
any such transfer of the Securities, such legal opinions, certifications
and
13
other information as the 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.
________________________
Your Signature
Signature Guarantee:
Date: ___________________ ________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
14
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of Amount of Principal amount Signature of
Exchange decrease increase of this Global authorized
in Principal in Principal Security following signatory of
Amount of this Amount of this such decrease or Trustee or
Global Security Global Security increase Securities Custodian
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 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 4.06 or 4.08 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 guaranty medallion program or other
signature guarantor acceptable to the Trustee
EXHIBIT B
[FORM OF] FACE OF EXCHANGE SECURITY
No. $__________
8 3/4% Senior Subordinated Note due 2008
CUSIP No. ______
EAGLE FAMILY FOODS, INC., a Delaware corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum of Dollars
on January 15, 2008.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
EAGLE FAMILY FOODS, INC.,
by ____________________
Name:
Title:
[CORPORATE SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by _________________________
Authorized Signatory
[FORM OF] REVERSE SIDE OF EXCHANGE SECURITY
8 3/4% Senior Subordinated Note due 2008
1. Interest
--------
(a) EAGLE FAMILY FOODS, 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 January 15 and July 15 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 January 23, 1998.
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 plus 1% per annum, 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 January 1 or July 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 of America that at the time of payment is legal
tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a certificated Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
-------- -------
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or
2
such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change the Registrar and the Paying Agent without
notice. The Company or any of its domestically organized Wholly Owned
Subsidiaries may act as Registrar, transfer agent or Paying Agent.
4. Indenture
---------
The Company issued the Securities under an Indenture dated as of
January 23, 1998 (the "Indenture"), among the Company, the Guarantors 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. (S)(S) 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 senior subordinated unsecured obligations of the
Company limited to $265,000,000 aggregate principal amount at any one time
outstanding (subject to Section 2.08 of the Indenture), of which $115,000,000 in
aggregate principal were initially issued on January 23, 1998. 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 Initial Securities. 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 ability of the Company and its Subsidiaries
to, among other things, make certain Investments and other Restricted Payments,
pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by
Subsidiaries of the Company, issue or sell shares of capital stock of such
Subsidiaries, enter into or permit certain transactions with Affiliates, enter
into Sale and Leaseback Transactions, create or incur Liens and make asset
sales. The Indenture also imposes limitations on the ability of the Company to
consolidate or
3
merge with or into any other Person or convey, transfer or lease all or
substantially all of the property of the Company.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors have, jointly and severally,
unconditionally guaranteed the Guaranteed Obligations on a senior subordinated
basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in the following paragraph, the Securities will
not be redeemable at the option of the Company prior to January 15, 2003.
Thereafter, the Securities will be redeemable at the option of the Company, in
whole or in part, on not less than 30 nor more than 60 days' prior notice, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest (if any), including thereon, 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), if redeemed during
the 12-month period commencing on January 15 of the years set forth below:
Redemption
Year Price
---- ----------
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000%
In addition, at any time and from time to time on or prior to January
15, 2002, the Company may (but shall not have the obligation to) redeem up to
35% of the original aggregate principal amount of the Securities (calculated
giving effect to any issuance of Additional Securities) at a redemption price of
108.75% of the original principal amount thereof, 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) with the proceeds of one or more Public Equity Offerings made by the
Company or of a capital contribution made by Holdings to the common equity
capital
4
of the Company with the net proceeds of a Public Equity Offering made by
Holdings; provided that at least 65% of the aggregate principal amount of
--------
Securities (calculated giving effect to any issuance of Additional Securities)
remain outstanding immediately after the occurrence of such redemption; and
provided, further, that such redemption shall occur within 75 days of the date
-------- -------
of the closing of such Public Equity Offering.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before a date for redemption to each Holder of
Securities to be redeemed at such Holder's 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.
8. Repurchase of Securities at the Option of Holders upon Change of Control
------------------------------------------------------------------------
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 equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
9. 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
5
before the Securities may be paid. The Company and each Guarantor agrees, and
each Securityholder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give it
effect and appoints the Trustee as attorney-in-fact for such purpose.
10. 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. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes 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 to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed or 15 days before an interest payment
date.
11. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
it for all purposes.
12. 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.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time may terminate
some of or all 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 and interest on the Securities to redemption or maturity,
as the case may be.
6
14. Amendment, Waiver
-----------------
Except as provided in the next two succeeding paragraphs, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Securities), and any existing default or compliance with any
provision of the Indenture or the Securities may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Securities
(including consents obtained in connection with a tender offer or exchange offer
for Securities).
Without the consent of each Holder affected, an amendment, supplement
or waiver may not (with respect to any Securities held by a nonconsenting
Holder): (i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver; (ii) reduce the principal of or
change the Stated Maturity of any Securities or alter the provisions with
respect to the redemption of the Securities (other than provisions relating to
Sections 4.06 and 4.08 of the Indenture); (iii) reduce the rate of or change the
time for payment of interest on any Security; (iv) waive a Default or Event of
Default in the payment of principal of or premium, if any, or interest on the
Securities (except a rescission of acceleration of the Securities by the Holders
of at least a majority in aggregate principal amount of the Securities and a
waiver of the payment default that resulted from such acceleration); (v) make
any Security payable in money other than that stated in the Securities; (vi)
make any change in the provisions of the Indenture relating to waivers of past
Defaults or the rights of Holders of Securities to receive payments of principal
of or premium, if any, or interest on the Securities; (vii) waive a redemption
payment with respect to any Security (other than a payment required by Sections
4.06 or 4.08 of the Indenture); (viii) amend or modify any Note Guarantees; or
(ix) make any change in the foregoing amendment, supplement and waiver
provisions.
Notwithstanding the foregoing, without the consent of any Holder of
Securities, the Company and the Trustee may amend or supplement the Indenture to
cure any ambiguity, omission, defect or inconsistency, to comply with Article V
of the Indenture, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to add additional Note Guarantees with respect
to the Securities or to secure the Securities, to add to the
7
covenants of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company, to comply with any
requirements of the SEC in connection with qualifying, or maintaining the
qualification of, the Indenture under the TIA, to make any change that does not
adversely affect the rights of any Holder of Securities or to provide for the
issuance of or to provide for the issuance of the Exchange Securities, Private
Exchange Securities or Additional Securities.
15. Defaults and Remedies
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities 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
Securities may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in aggregate principal amount of the
Securities, by written notice to the Trustee and the Company, may rescind any
declaration of 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 the acceleration.
16. 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.
8
17. No Recourse Against Others
--------------------------
No director, officer, employee, incorporator or stockholder of the
Company or Holdings, as such, shall have any liability for any obligations of
the Company or Holdings under the Securities or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities. Such waiver may not be effective to waive liabilities under the
Federal securities laws, and it is the view of the SEC that such waiver is
against public policy.
18. 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 with its manual signature.
19. 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).
20. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. 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.
9
The Company will furnish to any Holder of Securities upon written
request and without charge to the Holder a copy of the Indenture which has in it
the text of this Security.
10
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: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
Signature Guarantee:
Date: ___________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 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 4.06 or 4.08 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 guaranty medallion program or other signature guarantor
acceptable to the Trustee.
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE dated as of [ ], among
[GUARANTOR] (the "New Guarantor"), a subsidiary of EAGLE FAMILY
FOODS, INC. (or its successor), a Delaware corporation (the
"Company"), and IBJ XXXXXXXX BANK & TRUST COMPANY, a New York banking
corporation, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS the Company and Eagle Family Foods Holdings, Inc. (an
"Existing Guarantor") has heretofore executed and delivered to the Trustee an
Indenture (the "Indenture") dated as of January 23, 1998, providing for the
issuance on the date thereof of an aggregate principal amount of $115,000,000 of
8 3/4% Senior Subordinated Notes due 2008 (the "Securities");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all 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 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly
-----------------------
and severally with all the Existing Guarantors, to unconditionally guarantee the
Company's obligations under the Securities on the terms and subject to the
conditions set forth in Article X of the Indenture and
2
to be bound by all other applicable provisions of the Indenture and the
Securities.
2. 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 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.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
--------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
--------------------------------
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
-------------
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
-------------------
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
----------------------------------------
Name:
Title:
3
EAGLE FAMILY FOODS, INC.,
by
----------------------------------------
Name:
Title:
EAGLE FAMILY FOODS HOLDINGS, INC.,
by
----------------------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee,
by
----------------------------------------
Name:
Title:
EXHIBIT D
[Form of Letter of Representation]
Eagle Family Foods, Inc.
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Ladies and Gentlemen:
This certificate is delivered to request a transfer of $
principal amount of the 8 3/4% Senior Subordinated Notes due 2008 (the
"Securities") of Eagle Family Foods, 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 Rule
501(a)(1), (2), (3) or (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
Securities, and we are acquiring the Securities 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 risk of our investment in the Securities
and invest in or purchase securities similar to the Securities 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 Securities to offer, sell or
otherwise transfer such Securities prior to the later of the date which is two
years
2
after (X) the later of (A) the date of original issue or (B) the date on which
this Security was acquired from an affiliate of the Company or (Y) the date that
is three months after the last date on which the Company or any affiliate of the
Company was the owner of such Securities (or any predecessor thereto) only (a)
to the Company, (b) pursuant to a registration statement which has been declared
effective 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 or (e) to an institutional "accredited
investor" within the meaning of Rule 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 transaction involving
a minimum principal amount of 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. If any resale or other transfer of the
Securities is proposed to be made pursuant to clause (e) above prior to the
later of the date which is two years after (X) the later of (A) the date of
original issue or (B) the date on which this Security was acquired from an
affiliate of the Company or (Y) the date that is three months after the last
date on which the Company or any affiliate of the Company was the owner of such
Securities (or any predecessor thereto), 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 Rule 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 any offer, sale or other transfer prior to the later of the date which
is two years after (X) the later of (A) the date of original issue or (B) the
date on which this Security was acquired from an affiliate of the Company or (Y)
the date that is three months after the last date on
3
which the Company or any affiliate of the Company was the owner of such
Securities (or any predecessor thereto) of the Securities pursuant to clause
(d), (e) or (f) above to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
TRANSFEREE:___________________
BY____________________________
