EXECUTION COPY
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XXXXX XXXXX INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
% SENIOR SUBORDINATED NOTES DUE 2008
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INDENTURE
Dated as of February , 1998
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State Street Bank and Trust Company of Connecticut, N.A.
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Trustee
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TABLE OF CONTENTS
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ARTICLE 1 - DEFINITIONS AND INCORPORATION BY REFERENCE..................... 1
Section 1.01. Definitions............................................ 1
Section 1.02. Other Definitions......................................
Section 1.03. Incorporation by Reference of Trust Indenture Act......
Section 1.04. Rules of Construction..................................
Section 1.05. Compliance Certificates and Opinions...................
Section 1.06. Form of Documents Delivered to Trustee.................
Section 1.07. Acts of Holders........................................
ARTICLE 2 - THE NOTES......................................................
Section 2.01. Form and Dating........................................
Section 2.02. Execution and Authentication...........................
Section 2.03. Registrar and Paying Agent.............................
Section 2.04. Paying Agent to Hold Money in Trust....................
Section 2.05. Lists of Holders of the Notes..........................
Section 2.06. Transfer and Exchange..................................
Section 2.07. Replacement Notes......................................
Section 2.08. Outstanding Notes......................................
Section 2.09. Treasury Notes.........................................
Section 2.10. Temporary Notes........................................
Section 2.11. Cancellation...........................................
Section 2.12. Defaulted Interest.....................................
Section 2.13. Record Date............................................
Section 2.14. CUSIP Number...........................................
Section 2.15. Computation of Interest................................
ARTICLE 3 - REDEMPTION AND PREPAYMENT......................................
Section 3.01. Election to Redeem; Notice to Trustee..................
Section 3.02. Selection by Trustee of Notes to be Redeemed...........
Section 3.03. Notice of Redemption...................................
Section 3.04. Effect of Notice of Redemption.........................
Section 3.05. Deposit of Redemption Price............................
Section 3.06. Notes Payable on Redemption Date.......................
Section 3.07. Notes Redeemed in Part.................................
Section 3.08. Optional Redemption....................................
Section 3.09. Mandatory Redemption...................................
Section 3.10. Offer to Purchase by Application of Excess Proceeds....
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ARTICLE 4 - COVENANTS......................................................
Section 4.01. Payment of Principal, Premium and Interest.............
Section 4.02. Maintenance of Office or Agency........................
Section 4.03. Money for Payments to Be Held in Trust.................
Section 4.04. Reports................................................
Section 4.05. Statement as to Compliance; Notice of Default..........
Section 4.06. Payment of Taxes and Other Claims......................
Section 4.07. Stay, Extension, Usury Laws............................
Section 4.08. Corporate Existence....................................
Section 4.09. Offer to Repurchase Upon Change of Control.............
Section 4.10. Asset Sales............................................
Section 4.11. Limitation on Restricted Payments......................
Section 4.12. Limitation on Incurrence of Indebtedness and Issuance
of Preferred Stock.....................................
Section 4.13. Transactions with Affiliates...........................
Section 4.14. Dividend and Other Payment Restrictions Affecting
Subsidiaries...........................................
Section 4.15. Limitations on Issuances and Sales of Capital Stock of
Wholly Owned Subsidiaries..............................
Section 4.16. Additional Subsidiary Guarantees.......................
Section 4.17. Limitations on Liens...................................
Section 4.18. Sale and Leaseback Transactions........................
Section 4.19. No Senior Subordinated Debt............................
ARTICLE 5 - SUCCESSORS.....................................................
Section 5.01. Merger, Consolidation, or Sale of all or Substantially
all Assets.............................................
Section 5.02. Successor Corporation Substituted......................
ARTICLE 6 - DEFAULTS AND REMEDIES..........................................
Section 6.01. Events of Default and Notice Thereof...................
Section 6.02. Acceleration...........................................
Section 6.03. Other Remedies.........................................
Section 6.04. Waiver of Past Defaults................................
Section 6.05. Control by Majority....................................
Section 6.06. Limitation on Suits....................................
Section 6.07. Rights of Holders of Notes to Receive Payment..........
Section 6.08. Collection Suit by Trustee.............................
Section 6.09. Trustee May File Proofs of Claim.......................
Section 6.10. Priorities.............................................
Section 6.11. Undertaking for Costs..................................
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ARTICLE 7 - TRUSTEE........................................................
Section 7.01. Duties of Trustee......................................
Section 7.02. Rights of Trustee......................................
Section 7.03. Individual Rights of Trustee...........................
Section 7.04. Trustee's Disclaimer...................................
Section 7.05. Notice of Defaults.....................................
Section 7.06. Reports by Trustee to Holders of the Notes.............
Section 7.07. Compensation and Indemnity.............................
Section 7.08. Replacement of Trustee.................................
Section 7.09. Successor Trustee by Merger, Etc.......................
Section 7.10. Eligibility; Disqualification..........................
Section 7.11. Preferential Collection of Claims Against the
Company................................................
Section 7.12. Rights of Holders with Respect to Time Method
and Place..............................................
ARTICLE 8 - LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................
Section 8.01. Option to Effect Defeasance or Covenant Defeasance.....
Section 8.02. Legal Defeasance and Discharge.........................
Section 8.03. Covenant Defeasance....................................
Section 8.04. Conditions to Defeasance or Covenant Defeasance........
Section 8.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions....
Section 8.06. Repayment to Company...................................
Section 8.07. Reinstatement..........................................
ARTICLE 9 - AMENDMENT, SUPPLEMENT AND WAIVER...............................
Section 9.01. Without Consent of Holders of Notes....................
Section 9.02. With Consent of Holders of Notes.......................
Section 9.03. Compliance With TIA....................................
Section 9.04. Revocation and Effect of Consents......................
Section 9.05. Notation on or Exchange of Notes.......................
Section 9.06. Trustee to Sign Amendments, Etc........................
ARTICLE 10 - SUBORDINATION.................................................
Section 10.01. Agreement to Subordinate...............................
Section 10.02. Liquidation; Dissolution; Bankruptcy...................
Section 10.03. Default on Designated Senior Debt......................
Section 10.04. Acceleration of Securities.............................
Section 10.05. When Distribution Must be Paid Over....................
Section 10.06. Notice by Company......................................
Section 10.07. Subrogation............................................
Section 10.08. Relative Rights........................................
Section 10.09. Subordination May Not Be Impaired by Company...........
Section 10.10. Distribution or Notice to Representative...............
Section 10.11. Rights of Trustee and Paying Agent.....................
Section 10.12. Authorization to Effect Subordination..................
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Section 10.13. No Waiver of Subordination Provisions..................
Section 10.14. Certain Definitions....................................
ARTICLE 11 - GUARANTEE OF NOTES
Section 11.01 Subsidiary Guarantee...................................
Section 11.02 Execution and Delivery of Subsidiary Guarantee.........
Section 11.03 Subsidiary Guarantors May Consolidate, etc., on
Certain Terms..........................................
Section 11.04 Releases Following Sale of Assets......................
Section 11.05 Limitation on Subsidiary Guarantor Liability...........
Section 11.06 "Trustee" to Include Paying Agent......................
ARTICLE 12 - SUBORDINATION OF SUBSIDIARY GUARANTEES
Section 12.01 Agreement to Subordinate...............................
Section 12.02 Liquidation; Dissolution; Bankruptcy...................
Section 12.03 Default on Designated Senior Debt......................
Section 12.04 Acceleration of Securities.............................
Section 12.05 When Distribution Must Be Paid Over....................
Section 12.06 Notice By Subsidiary Guarantor.........................
Section 12.07 Subrogation............................................
Section 12.08 Relative Rights........................................
Section 12.09 Subordination May Not Be Impaired By Subsidiary
Guarantor..............................................
Section 12.10 Distribution or Notice to Representative...............
Section 12.11 Rights of Trustee and Paying Agent.....................
Section 12.12 Authorization to Effect Subordination..................
Section 12.13 No Waiver of Subordination Provisions..................
Section 12.14 Certain Definitions....................................
ARTICLE 13 - SATISFACTION AND DISCHARGE....................................
Section 13.01. Satisfaction and Discharge of Indenture................
Section 13.02. Application of Trust Money.............................
ARTICLE 14 - MISCELLANEOUS.................................................
Section 14.01. Conflict of any Provision of Indenture With TIA........
Section 14.02. Notices................................................
Section 14.03. Communication by Holders of Notes with Other Holders
of Notes...............................................
Section 14.04. Certificate and Opinion as to Conditions Precedent.....
Section 14.05. Legal Holidays.........................................
Section 14.06. No Personal Liability of Directors, Officers,
Employees an Stockholders..............................
Section 14.07. Governing Law..........................................
Section 14.08. No Adverse Interpretation of Other Agreements..........
Section 14.09. Successors and Assigns.................................
Section 14.10. Severability...........................................
Section 14.11. Counterpart Originals..................................
Section 14.12. Table of Contents, Headings, Etc.......................
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EXHIBITS
A - Form of Note
B - Subsidiary Guarantee
C - Form of Supplemental Indenture to be Delivered by Subsidiary
Guarantors
D - Form of Notation of Subsidiary Guarantee on Note
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)..................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.10
(c)...................................................... N.A.
311(a)........................................................ 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)........................................................ 2.05
(b)...................................................... 14.03
(c)...................................................... 14.03
313(a)........................................................ 7.06
(b)(1)................................................... N.A.
(b)(2)................................................... 7.06; 7.07
(c)...................................................... 7.06; 14.02
(d)...................................................... 7.06
314(a)........................................................ 4.04; 14.02
(b)...................................................... N.A.
(c)(1)................................................... 14.04
(c)(2)................................................... 14.04
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(f)...................................................... N.A.
315(a)........................................................ 7.01
(b)...................................................... 7.05; 14.02
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.11
316(a)(last sentence)......................................... 2.09
(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)...................................................... 2.04
318(a)........................................................ 14.01
(b)...................................................... N.A.
(c)...................................................... 14.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
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INDENTURE dated as of , 1998 between Xxxxx Xxxxx Inc., a
Delaware corporation (the "Company"), the Subsidiary Guarantors executing a
signature page hereto, and State Street Bank and Trust Company of Connecticut,
N.A., as trustee (the "Trustee"). The Company and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the % Senior Subordinated Notes due 2008.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
Set forth below are certain defined terms used in this Indenture.
"Acquired Indebtedness" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became 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 specified Person, and (ii) Indebtedness secured by a Lien
encumbering an asset acquired by such specified Person at the time such asset
is acquired by such specified Person.
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means (a) the sale, lease, conveyance, disposition or
other transfer (a "disposition") of any properties, assets or rights
(including, without limitation, a sale and leaseback transaction) or (b) the
issuance, sale or transfer by the Company of Equity Interests of a Subsidiary,
and in the case of either clause (a) or (b), whether in a single transaction or
a series of related transactions for Net Proceeds in excess of $1.0 million;
provided, however, that the following transactions will be deemed not to be
Asset Sales: (i) sales of inventory in the ordinary course of business; (ii) a
disposition of assets by the Company to a Wholly Owned Subsidiary or by a
Wholly Owned Subsidiary of the Company to the Company or to another
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Wholly Owned Subsidiary of the Company; (iii) a disposition of Equity Interests
by a Wholly Owned Subsidiary of the Company to the Company or to another Wholly
Owned Subsidiary of the Company; (iv) the sale and leaseback of any assets
within 90 days of the acquisition of such assets; and (v) a Permitted
Investment or Restricted Payment that is permitted by Section 4.11 hereof.
"Attributable Indebtedness" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net 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 or may, at the
option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar foreign,
federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of such board of directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Expenditure Indebtedness" means Indebtedness incurred by any
Person to finance the purchase or construction of any property or assets
acquired or constructed by such Person which have a useful life of more than
one year so long as (a) the purchase or construction price for such property or
assets is included in "addition to property, plant or equipment" in accordance
with GAAP, (b) the acquisition or construction of such property or assets is
not part of any acquisition of a Person or line of business and (c) such
Indebtedness is incurred within 90 days of the acquisition or completion of
construction of such property or assets.
"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" means, (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and
2
(d) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Cash Equivalents" means (a) United States dollars, (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (c) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the
date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500.0 million, (d) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (b) and (c) above entered into with any
financial institution meeting the qualifications specified in clause (c) above,
(e) commercial paper having the highest rating obtainable from Xxxxx'x
Investors Service, Inc. or Standard & Poor's Rating Service and in each case
maturing within six months after the date of acquisition, and (f) any fund
investing exclusively in investments of the types described in clauses (a)
through (e) above.
"Change of Control" means the occurrence of any of the following: (a)
the sale, lease, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Subsidiaries, taken
as a whole, to any "person" or "group" (as such terms are used in Section 13(d)
of the Exchange Act) other than the Principals, (b) the adoption of a plan
relating to the liquidation or dissolution of the Company, (c) the consummation
of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any "person" or "group" (as such terms are used in
Section 13(d) of the Exchange Act) other than the Principals becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act), directly or indirectly through one or more intermediaries,
of more than 50% of the voting power of the outstanding voting stock of the
Company, or (d) the first day on which more than a majority of the members of
the Board of Directors of the Company are not Continuing Directors.
"Closing Date" means the closing date of the sale and original
issuance of the Notes under this Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Stock Offering" means the offering and sale of 6,700,000
shares of Common Stock of the Company, pursuant to a prospectus dated
, 1998.
"Company" means Xxxxx Xxxxx Inc., a Delaware Corporation.
3
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (a) an
amount equal to any extraordinary loss plus any net loss realized in connection
with an Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (b) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net
Income, plus (c) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (d) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses
(other than deferred rental expense) that were paid in a prior period) and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period
or amortization of a prepaid cash expense that was paid in a prior period) of
such Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income.
"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 (a) the Net Income (but not loss) of any Person that is not a
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, (b) the Net
Income 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 (that 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, (c) the Net Income of any Person acquired
in a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, and (d) the cumulative effect of a change in
accounting principles shall be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (a) was a member of the
Board of Directors of the Company on the Closing Date or (b) was nominated for
election to the Board of Directors of the Company with the approval of, or
whose election to the Board of Directors of the Company
4
was ratified by, at least a majority of the Continuing Directors who were
members of the Board of Directors of the Company at the time of such nomination
or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 14.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"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.
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"Designated Senior Debt" means, with respect to any Person, (i) any
Indebtedness of such Person outstanding under the New Credit Agreement and
thereafter (ii) any other Senior Debt of such Person permitted under this
Indenture the principal amount of which is $25 million or more and that has
been designated by such Person as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise is exchangeable
for Indebtedness (except to the extent exchangeable at the option of such
Person subject to the terms of any debt instrument to which such Person is a
party) or redeemable at the option of the holder thereof, in whole or in part,
on or prior to the date that is 91 days after the date on which the Notes
mature; provided, however, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a Change of
Control or an Asset Sale shall not constitute Disqualified Stock if the terms
of such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the provisions of Section 4.11 hereof.
"DLJMB" means DLJ Merchant Banking Partners II, L.P. and its
Affiliates.
5
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Agreement) in
existence on the date of this Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the
sum of (a) consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations and net payments (if any) pursuant to Hedging Obligations), and (b)
commissions, discounts and other fees and charges incurred with respect to
letters of credit and bankers' acceptances financing, and (c) any interest
expense on Indebtedness of another Person that is guaranteed by such Person or
secured by a Lien on assets of such Person and (d) the product of (i) all
dividend payments on any series of preferred stock of such Person (other than
dividends payable solely in Equity Interests that are not Disqualified Stock),
times (ii) a fraction, the numerator or of which is one and the denominator of
which is one minus the then current combined federal, state and local statutory
tax rate of such Person, expressed as decimal, in each case, on a consolidated
basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Subsidiaries for such period (exclusive of amounts attributable to discontinued
operations, as determined in accordance with GAAP, or operations and businesses
disposed of prior to the Calculation Date (as defined below)) to the Fixed
Charges of such Person for such period (exclusive of amounts attributable to
discontinued operations, as determined in accordance with GAAP, or operations
and businesses disposed of prior to the Calculation Date, but only to the
extent that the obligations giving rise to such Fixed Charges would no longer
be obligations contributing to such Person's Fixed Charges subsequent to the
Calculation Date). In the event that the Company or any of its Subsidiaries
incurs, assumes, guarantees or redeems any Indebtedness (other than revolving
credit borrowings) or issues preferred stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at
6
the beginning of the applicable four-quarter reference period. For purposes of
making the computation referred to above, acquisitions that have been made by
the Company or any of its Subsidiaries, including all mergers and
consolidations and any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the
Calculation Date shall be calculated on a pro forma basis and shall be deemed
to have occurred on the first day of such four-quarter reference period and
Consolidated Cash Flow for such reference period shall be calculated to include
the Consolidated Cash Flow of the acquired entities (adjusted to exclude (x)
the cost of any compensation, remuneration or other benefit paid or provided to
any employee, consultant, Affiliate or equity owner of the acquired entities to
the extent such costs are eliminated and not replaced and (y) the amount of any
reduction in general, administrative or overhead costs of the acquired
entities, in each case, as determined in good faith by an officer of the
Company) without giving effect to clause (c) of the proviso set forth in the
definition of "Consolidated Net Income" in this Section 1.01.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect as of the Closing Date.
"Global Note" means a permanent global senior subordinated note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit A,
and that is deposited with the Note Custodian and registered in the name of the
Depository.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Note is registered.
7
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers' acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as Indebtedness
of others secured by a Lien on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the guarantee by such Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (a) the
accreted value thereof (together with any interest thereon that is more than 30
days past due), in the case of any Indebtedness that does not require current
payments of interest, and (b) the principal amount thereof, in the case of any
other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees by the referent Person of, and Liens on
any assets of the referent Person securing, Indebtedness or other obligations
of other Persons), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Equity Interests of such Subsidiary not
sold or disposed of in an amount determined as provided in the final paragraph
of Section 4.11.
"Legal Holiday" means a Saturday, Sunday or a day on which banking
institutions in the City of New York, the city where the principal office of
the Trustee is located, or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday.
"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,
8
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).
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (a) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (i) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (ii)
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, and (b) any extraordinary or nonrecurring gain (but not loss),
together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (without
duplication) (a) the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees, sales
commissions, recording fees, title transfer fees, and appraiser fees) and any
relocation expenses incurred as a result thereof, (b) taxes paid or estimated
to be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), (c) amounts required
to be applied to the repayment of Indebtedness (other than revolving credit
Indebtedness incurred pursuant to the New Credit Agreement) secured by a Lien
on the asset or assets that were the subject of such Asset Sale, and (d) any
reserve established in accordance with GAAP or any amount placed in escrow, in
either case for adjustment in respect of the sale price of such asset or
assets, until such time as such reserve is reversed or such escrow arrangement
is terminated, in which case Net Proceeds shall include only the amount of the
reserve so reversed or the amount returned to the Company or its Subsidiaries
from such escrow arrangement, as the case may be.
"New Credit Agreement" means the Credit Agreement, dated as of
February, , 1998, among the Company, ____________ and ____________, including
any related notes, guarantees, collateral and security documents, instruments
and agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time, subject
to the terms thereof and of this Indenture.
"Notes" means the Company's % Senior Subordinated Notes due 2008
issued in compliance with this Indenture.
9
"Note Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering and sale of the Notes by the Company
pursuant to a prospectus, dated as of , 1998, contained in the Registration
Statement.
"Officer" means the Chairman, Chief Executive Officer, the President,
and any Vice President of the Company.
"Officer's Certificate" means a certificate signed on behalf of the
Company by an Officer of the Company that meets the requirements set forth in
Section 1.05 hereof.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and who shall be acceptable to the Trustee, in form and
substance satisfactory to the Trustee. Each such opinion shall include the
statements provided for in TIA Section 314(e) to the extent applicable.
"Pari Passu Indebtedness" means Indebtedness of the Company or any
Subsidiary Guarantor that ranks pari passu in right of payment to the Notes or
any Subsidiary Guarantee.
"Permitted Business" means any business in which the Company or the
Subsidiary Guarantors are engaged on the Closing Date or any business
reasonably related, incidental or ancillary thereto.
"Permitted Investments" means (a) any Investment in the Company or in
a Wholly Owned Subsidiary of the Company, (b) any Investment in cash or Cash
Equivalents, (c) any Investment by the Company or any Subsidiary of the Company
in a Person that is engaged in a Permitted Business if as a result of such
Investment (i) such Person becomes (A) a Wholly Owned Subsidiary of the Company
and (B) a Subsidiary Guarantor or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary of
the Company, (d) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Sections 3.10 and 4.10 hereof, (e) any Investment acquired solely in
exchange for Equity Interests (other than Disqualified Stock) of the Company,
and (f) other Investments in any Person that is engaged in a Permitted Business
which Investment has a fair market value (as determined by a resolution of the
Board of Directors of the Company and set forth in an Officer's Certificate
delivered to the Trustee),
10
when taken together with all other Investments made pursuant to this clause (f)
that are at the time outstanding, not to exceed $10.0 million.
"Permitted Junior Securities" means Equity Interests in the Company or
a Subsidiary Guarantor or debt securities of the Company or a Subsidiary
Guarantor that are subordinated to all Senior Debt (and any debt securities
issued in exchange for Senior Debt) to substantially the same extent as, or to
a greater extent than, the Notes are subordinated to Senior Debt.
"Permitted 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 (a) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus premium, if any, and accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection therewith), (b)
such Permitted Refinancing Indebtedness has a final maturity date no earlier
than the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, (c) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness is subordinated in right of
payment to the Notes on terms at least as favorable, taken as a whole, to the
Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, and (d) 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.
"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.
"Principals" means DLJMB.
"Qualified Offering" means (i) any issuance of common stock or
preferred stock by the Company (excluding Disqualified Stock) that is
registered pursuant to the Securities Act, other than issuance registered on
Form S-8 and issuances registered on Form S-4, and (ii) any private issuance of
common stock or preferred stock of the Company (excluding Disqualified Stock),
other than issuances of common stock pursuant to employee benefit plans of the
Company or otherwise as compensation of employees of the Company.
11
"Refinancing Plan" means the Refinancing Plan described in the
Registration Statement.
"Registration Statement" means the Registration Statement No.
333-43313 on Form S-1 relating to the Notes initially filed with the Commission
on December 24, 1997 and all exhibits, schedules and amendments thereto.
"Responsible Officer," when used with respect to the Trustee, means
any officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer or employee
to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Senior Debt" means, with respect to any Person, (a) all Obligations
of such Person outstanding under the New Credit Agreement and all Hedging
Obligations payable to a lender or an affiliate thereof or to a Person that was
a lender or an Affiliate thereof at the time the contract was entered into
under the New Credit Agreement or any of its Affiliates, including, without
limitation, interest accruing subsequent to the filing of, or which would have
accrued but for the filing of, a petition for bankruptcy, whether or not such
interest is an allowable claim in such bankruptcy proceeding, (b) any other
Indebtedness of such Person unless the instrument under which such Indebtedness
is incurred expressly provides that it is subordinated in right of payment to
any other Senior Debt of such Person, and (c) all Obligations with respect to
the foregoing. Notwithstanding anything to the contrary in the foregoing,
Senior Debt will not include (i) any liability for federal, state, local or
other taxes, (ii) any Indebtedness of such Person to any of its Subsidiaries,
(iii) any trade payables or (iv) any Indebtedness that is incurred in violation
of this Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Closing Date.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
12
"Subsidiary" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (b) any partnership (i) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (ii) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantees" means the joint and several guarantees of the
Company's payment obligations under the Notes issued by all of the Company's
present and future Subsidiaries, which guarantees shall be subordinate to all
Senior Debt and shall rank pari passu with or senior to all other Indebtedness
of such Subsidiaries.
"Subsidiary Guarantor" means any Subsidiary of the Company that shall
have guaranteed the payment of all principal of, and interest and premium, if
any, on the Notes and all other amounts payable under the Notes or this
Indenture, pursuant to a Subsidiary Guarantee.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such above unless and until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means such successor.
"Weighted Averages Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) 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.
13
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Act"........................................................... 1.07
"Affiliate Transaction"......................................... 4.13
"Asset Sale Offer".............................................. 3.10
"Change of Control Offer"....................................... 4.09
"Change of Control Payment"..................................... 4.09
"Change of Control Payment Date"................................ 4.09
"Covenant Defeasance"........................................... 8.03
"distribution".................................................. 10.14
"DTC"........................................................... 2.03
"Event of Default".............................................. 6.01
"Excess Proceeds"............................................... 4.10
"incur"......................................................... 4.12
"Legal Defeasance".............................................. 8.02
"Offer Amount".................................................. 3.10
"Offer Period".................................................. 3.10
"Paying Agent".................................................. 2.03
"payment"....................................................... 10.14
"Payment Blockage Notice"....................................... 10.03
"Payment Default"............................................... 6.01
"Payment in full"............................................... 10.01
"Purchase Date"................................................. 3.10
"Registrar"..................................................... 2.03
"Restricted Payments"........................................... 4.11
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
14
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligors
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
Section 1.05. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion (other than the certificates required by
Section 4.05(a) hereof) with respect to compliance with a condition or covenant
provided for in this Indenture shall comply with the provisions of TIA Section
314(e) and shall include:
15
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.06. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
16
Section 1.07. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner that the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by a register kept by the
Registrar.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, by or pursuant to a Board Resolution, fix in advance a
record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith
and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Notes then outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the Notes
then outstanding shall be computed as of such record date; provided that no
such request, demand, authorization, direction, notice, consent, waiver or
other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Note shall bind every future Holder of
the same Note or the
17
Holder of every Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, suffered or
omitted to be done by the Trustee, any Paying Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Notes may have
notations, legends or endorsements approved as to form by the Company and
required by law, stock exchange rule, agreements to which the Company is
subject, or usage. Each Note shall be dated the date of its authentication. The
Notes shall be issuable in registered form, without coupons, and only in
denominations of $1,000 and integral multiples thereof.
(a) Global Notes. Notes offered and sold in connection with the
Offering shall be issued initially in the form of Global Notes, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian of the Depository, and registered in the name of the
Depository or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depository or its
nominee as hereinafter provided.
18
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Note Custodian,
at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to
Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depository or the nominee of the Depository
and (ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Trustee as custodian for the
Depository.
Participants who hold Notes through the Depository shall have no
rights under this Indenture with respect to any Global Note held on their
behalf by the Depository or by the Note Custodian as custodian for the
Depository or under such Global Note, and the Depository may be treated by the
Company, the Trustee and any Agent of the Company or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
Agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its participants, the operation of
customary practices of such Depository governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto (but without including
the text referred to in footnotes 1 and 2 thereto).
Section 2.02. Execution and Authentication.
19
One Officer of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Notes and may be in facsimile form.
If an Officer of the Company whose signature is on a Note no longer
holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially
as set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by an
Officer of the Company, authenticate Notes for original issue up to an
aggregate principal amount stated in the Notes. The aggregate principal amount
of Notes outstanding at any time shall not exceed such amount except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar") and (ii) an office or agency where Notes may be
presented for payment ("Paying Agent") within the City of and the State of New
York or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their respective addresses set forth in the register
of Holders; provided that all payments with respect to (i) Notes the Holders of
which have given wire transfer instructions to the Company will be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof, and (ii) Notes represented by one or more
permanent Global Notes will be paid by wire transfer of immediately available
funds to the account of the Depository or any successor thereto. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent, Registrar or co-Registrar without prior
notice to any Holder. The Company shall notify the Trustee in writing and the
Trustee shall notify the Holders of the name and address of any Agent not a
party to this Indenture. The Company may act as Paying Agent, Registrar or
co-Registrar. The Company shall enter into an appropriate agency
20
agreement with any Agent not a party to this Indenture, which shall be subject
to any obligations imposed by the provisions 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, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment
of principal of, premium, if any, and interest on the Notes, and shall notify
the Trustee of any Default by the Company in making any such payment. While any
such Default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company) shall have no further liability for the money delivered to the
Trustee. If the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.
Section 2.05. Lists of Holders of the Notes.
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
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven (7)
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 Holders, including
the aggregate principal amount of the Notes held by each thereof, and the
Company shall otherwise comply with TIA Section 312(a).
Section 2.06. Transfer and Exchange.
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(a) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture, the procedures of the Depository
therefor and applicable securities laws. Beneficial interests in a Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note.
(b) Transfer and Exchange of Definitive Notes. When Notes in
definitive form are presented to the Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange
if its requirements for such transactions are met; provided, however, that any
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder
thereof or by his attorney duly authorized in writing. To permit registrations
of transfer and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's request, subject to such rules as the
Trustee may reasonably require.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Note may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Authentication of Definitive Notes in Absence of Depository. If at
any time:
(i) the Depository for the Notes notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global
Notes and a successor Depository for the Global Notes is not appointed by
the Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of definitive Notes under this
Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(e) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for definitive
Notes, redeemed,
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repurchased or cancelled, all Global Notes shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the
Trustee or the Notes Custodian, at the direction of the Trustee, to reflect
such reduction.
(f) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, subject
to this Section 2.06, the Company shall execute and, upon the written order
of the Company signed by an Officer of the Company, the Trustee shall
authenticate definitive Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to any Holder for any
registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in
connection therewith (other than such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.10, 3.07 or 9.05
hereof, which shall be paid by the Company).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All definitive Notes and Global Notes issued upon any
registration of transfer or exchange of definitive Notes or Global Notes
shall be the valid Obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the definitive
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
(v) The Company and the Registrar shall not be required:
(A) to issue, to register the transfer of or to exchange
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Sections
3.01 and 3.02 hereof and ending at the close of business on the day of
selection;
(B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part;
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(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date;
or
(D) to register the transfer of a Note other than in amounts
of $1,000 or multiple integrals thereof.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate definitive Notes and Global
Notes in accordance with the provisions of Section 2.02 hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note and the ownership thereof, the Company shall issue and the
Trustee, upon the written order of the Company signed by an Officer of the
Company, shall authenticate a replacement Note if the Trustee's requirements
for replacements of Notes are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
reasonable judgment of the Trustee and the Company to protect the Company, the
Trustee, each Agent and each authenticating agent from any loss which any of
them may suffer if a Note is replaced. The Company and the Trustee may charge
the Holder for their expenses in replacing a Note.
Every replacement Note is an additional Obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and ratably
with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding, subject to the provisions of applicable
law to the contrary. If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue. Subject to Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
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Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, a Subsidiary of the Company or any Affiliate of the Company shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Responsible Officer of the Trustee knows to be
so owned shall be so considered. Notwithstanding the foregoing, Notes that are
to be acquired by the Company or an Affiliate of the Company pursuant to an
exchange offer, tender offer or other agreement shall not be deemed to be owned
by such entity until legal title to such Notes passes to such entity.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and, upon the written order of the Company signed by an Officer of the Company,
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee, upon receipt of
the written order of the Company signed by an Officer of the Company, shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. Subject to Section 2.07 hereof,
the Company may not issue new Notes to replace Notes that it has redeemed or
paid or that have been delivered to the Trustee for cancellation. All cancelled
Notes held by the Trustee shall be destroyed and certification of their
destruction delivered to the Company, unless by a written order, signed by an
Officer of the Company, the Company shall direct that cancelled Notes be
returned to it.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, the
Company shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five (5) Business Days
prior to the payment date, in each case at the rate provided in the Notes and
in Section
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4.01 hereof. The Company shall fix or cause to be fixed each such special
record date and payment date, and shall, promptly thereafter, notify the
Trustee of any such date. At least fifteen (15) days before the special record
date, the Company (or the Trustee, in the name of and at the expense of the
Company) shall mail to Holders, at their addresses as they appear on the
register of Notes maintained by the Registrar, a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.
Section 2.13. Record Date.
The record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA
Section 316(c).
Section 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number and, if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.
Section 2.15. Computation of Interest.
Interest on the Notes will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section
3.08 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 30 but not more than 60
days prior to the redemption date fixed by it (unless a shorter notice period
shall be satisfactory to the Trustee for its convenience), notify the Trustee
pursuant to an Officer's Certificate of (i) such redemption date, (ii) the
principal amount of Notes to be redeemed and (iii) the clause of this Indenture
pursuant to which the redemption shall occur.
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Section 3.02. Selection by Trustee of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata
basis, by lot or by such other method as the Trustee deems fair and
appropriate, provided that no Notes with shall be redeemed in a principal
amount that is less than $1,000.
The Trustee shall promptly notify the Company and the Registrar in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
Section 3.03. Notice of Redemption.
Subject to the provisions of Sections 3.10 and 4.09 hereof, notice of
redemption shall be mailed by first class mail, postage prepaid, at least 30
but not more than 60 days before the redemption date to each Holder of Notes to
be redeemed at its registered address. If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed.
All notices of redemption shall state:
(a) the redemption date;
(b) the redemption price;
(c) if less than all Notes then outstanding are to be redeemed, the
identification (and, in the case of a Note to be redeemed in part, the
principal amount) of the particular Notes to be redeemed;
(d) that on the redemption date the redemption price will become due
and payable upon each such Note or portion thereof, and that (unless the
Company shall default in payment of the redemption price) interest thereon
shall cease to accrue on or after said date;
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(e) the places or places where such Notes are to be surrendered for
payment of the redemption price;
(f) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(g) the CUSIP number, if any, relating to such Notes; and
(h) in the case of a Note to be redeemed in part, the principal amount
of such Note to be redeemed and that after the redemption date upon
surrender of such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at its request, by the Trustee in the
name and at the expense of the Company.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance herewith, Notes
called for redemption become irrevocably due and payable on the redemption date
at the redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. on any redemption date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 4.03
hereof) an amount of money in same day funds (or New York Clearing House funds
if such deposit is made prior to the applicable redemption date) sufficient to
pay the redemption price of, and accrued interest on, all the Notes or portions
thereof which are to be redeemed on that date.
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Section 3.06. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the redemption date, become due and payable at the
redemption price therein specified and from and after such date (unless the
Company shall default in the payment of the redemption price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Company at the redemption price together with accrued interest to the
redemption date.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal thereof (and premium, if any, thereon)
shall, until paid, bear interest from the redemption date at the rate borne by
such Note.
Section 3.07. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 4.02 hereof (with, if the Company, the Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Registrar or the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and a new Note in
principal amount equal to the unpurchased or unredeemed portion will be issued
in the name of the Holder thereof upon cancellation of the original Note. On
and after the purchase or redemption date, unless the Company defaults in
payment of the purchase or redemption price, interest shall cease to accrue on
Notes or portions thereof purchased or called for redemption.
Section 3.08. Optional Redemption.
(a) Except as described in this Section 3.08, the Notes will not be
redeemable at the Company's option prior to 2003. Thereafter, the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' written notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below, together with accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on of
each of the years indicated below:
Redemption
Year Price
---- -----
2003................................................. . %
2004................................................. . %
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2005................................................. . %
2006 and thereafter.................................. 100.000%
Notwithstanding the foregoing, on or prior to , 2001, the
Company may, at its option, redeem up to 35% of the original aggregate
principal amount of Notes at a redemption price equal to . % of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date, with the net proceeds of one or more Qualified Offerings
of the Company; provided that at least 65% of the original aggregate principal
amount of Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that any such redemption shall occur within
90 days of the date of the closing of such Qualified Offering.
(b) Any redemption pursuant to this Section 3.08 shall be made
pursuant to the provisions of Sections 3.01 through 3.07 hereof.
Section 3.09. Mandatory Redemption.
Except as set forth under Sections 4.09 and 4.10 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.
Section 3.10. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Notes (an "Asset
Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer.
If the Purchase Date is on or after an interest payment record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable in respect of Notes tendered pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee.
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The notice shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale
Offer shall be made to all Holders. The notice, which shall govern the terms of
the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.10 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
(or portion thereof) accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice not later than the third Business Day preceding the
end of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives,
not later than the third Business Day preceding the end of the Offer
Period, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased in accordance with Section 3.02 hereof (with such adjustments as
may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before 12:00 p.m. (New York City time) on each Purchase Date,
the Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available
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funds the aggregate purchase price with respect to a principal amount of Notes
equal to the Offer Amount, together with accrued and unpaid interest thereon to
the Purchase Date, to be held for payment in accordance with the terms of this
Section 3.10. On or before the Purchase Date, the Company shall, to the extent
lawful, (i) accept for payment in accordance with Section 3.02 hereof the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, (ii)
deliver or cause the Paying Agent or depositary, as the case may be, to deliver
to the Trustee Notes so accepted and (iii) deliver to the Trustee an Officer's
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.10. The
Company, the depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five Business Days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes tendered by such Holder and accepted by the Company for purchase,
plus any accrued and unpaid interest thereon to the Purchase Date, and the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company shall authenticate and mail or deliver such new Note to such
Holder, equal in principal amount to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.10, any purchase
pursuant to this Section 3.10 shall be made pursuant to the provisions of
Sections 3.01 through 3.07 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Principal, Premium and Interest.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Notes on the dates and in the manner provided in
the Notes. Principal, premium, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on
32
overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company will maintain an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes, and may from time to time rescind such designation;
provided, however, that no such designation or recession shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or recession and any change in the location of any such office
or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03 hereof.
Section 4.03. Money for Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium, if any, or
interest on any of the Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal, premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal of, premium, if
any, or interest on any Notes, deposit with a Paying Agent a sum in same day
funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) sufficient to pay the
principal, premium, if any, or interest so becoming due (or at the option of
the Company, payment of interest may be mailed by check to the Holders of the
Notes at their respective addresses set forth in the register of Holders of
Notes; provided that all payments with respect to Notes represented by one or
more permanent Global Notes will be paid by wire
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transfer of immediately available funds to the account of the Depository or any
successor thereto) such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal,
premium, if any, or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and obligations
of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be
paid to the Company at the request of the Company or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense of the Company (i) cause to be published once, in The New York Times
and The Wall
34
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company, and (ii) cause notice to be
promptly sent to each Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 4.04. Reports.
Whether or not the Company is required to do so by the rules and
regulations of the Commission, the Company will file with the Commission
(unless the Commission will not accept such a filing) and, within 15 days of
filing, or attempting to file, the same with the Commission, furnish to the
Holders of Notes (a) all quarterly and annual financial and other information
with respect to the Company and its Subsidiaries that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants, and (b) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports.
The Company shall at all times comply with TIA Section 314(a).
Section 4.05. Statement as to Compliance; Notice of Default.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year ending after the date of this Indenture, an Officer's
Certificate stating whether, to such Officer's knowledge, the Company is in
compliance with all covenants and conditions to be complied with by it under
this Indenture (including with respect to any Restricted Payments made during
such year, the basis upon which the calculations required by Section 4.11
hereof were computed, which calculations may be based on the Company's latest
financial statements), and further stating, as to the Officer signing such
certificate, that to the best of his or her knowledge each entity is not in
default in the performance or observance of any terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest or premium, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action the Company
is taking or proposes to take with respect thereto. For purposes of this
Section 4.05,
35
such compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the annual reports
delivered pursuant to Section 4.04(a) hereof shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officer's Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.
Section 4.06. Payment of Taxes and Other Claims.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies, except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section 4.07. Stay, Extension, Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law whatever enacted, now or at any time hereafter in
force, that may affect that covenants or the performance of this Indenture; and
the Company and each Subsidiary Guarantor (to the extent that it may lawfully
do so) hereby waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been
enacted.
Section 4.08. Corporate Existence.
Subject to Articles 5 and 11 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, and the
36
corporate, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary; provided,
however, that the Company shall not be required to preserve the existence of
any of its Subsidiaries, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries, taken as a whole.
Section 4.09. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at an offer
price in cash equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of repurchase (the
"Change of Control Payment").
(b) Within 15 days following any Change of Control, the Company shall
(or shall cause the Trustee to) mail a notice to each Holder stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.09 and that all Notes validly tendered and not withdrawn
will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days but no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to
a Change of Control Offer will be required to surrender the Notes, properly
endorsed for transfer, together with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed and such customary
documents as the Company may reasonably request, to the Paying Agent at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the
third Business Day preceding
37
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal
to $1,000 in principal amount or an integral multiple thereof.
(c) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent such laws or regulations are applicable in connection with the
repurchase of the Notes pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations described in this Indenture by virtue thereof.
(d) On or before 10:00 a.m. New York time on the Change of Control
Payment Date, the Company shall, to the extent lawful, (a) accept for payment
all Notes or portions thereof properly tendered pursuant to the Change of
Control Offer, (b) deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all Notes or portions thereof so tendered and
(c) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officer's Certificate stating the aggregate principal amount
of Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
provided, however, that each such new Note will be in a principal amount of
$1,000 or an integral multiple thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(e) The Company shall not be required to make a Change of Control
Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
(f) The Change of Control provisions described in this Section 4.09
will be applicable whether or not any other provisions of this Indenture are
applicable.
38
Section 4.10. Asset Sales.
The Company will not, and will not permit any of its Subsidiaries to,
consummate an Asset Sale unless (a) the Company (or the Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by a Board Resolution set forth in an
Officer's Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (b) at least 75% of the
consideration therefor received by the Company or such Subsidiary is in the
form of (I) Cash Equivalents or (II) property or assets that are used or useful
in a Permitted Business, or the Capital Stock of any Person engaged in a
Permitted Business if, as a result of the acquisition by the Company or any
Subsidiary thereof, such Person becomes a Subsidiary Guarantor; provided,
however, that the amount of (i) any liabilities (as shown on the Company's or
such Subsidiary's most recent balance sheet), of the Company or such Subsidiary
(other than contingent liabilities and liabilities of the Company that are by
their terms subordinated to the Notes or any guarantee thereof) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Subsidiary from further liability
and (ii) any securities, notes or other obligations received by the Company or
any such Subsidiary from such transferee that are immediately converted by the
Company or such Subsidiary into cash (to the extent of the cash received), will
be deemed to be cash for purposes of this provision; provided further, that the
75% limitation referred to above shall not apply to any Asset Sale in which the
Cash Equivalent portion of the consideration received therefrom, determined in
accordance with the foregoing proviso, is equal to or greater than what the
after-tax net proceeds would have been had such Asset Sale complied with the
aforementioned 75% limitation.
Within 270 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or any such Subsidiary shall apply such Net Proceeds at its
option (or to the extent the Company is required to apply such Net Proceeds
pursuant to the terms of the New Credit Agreement), to (a) repay Senior Debt
(and to correspondingly reduce commitments with respect thereto in the case of
revolving borrowings) or (b) repay Pari Passu Indebtedness of the Company or
any Subsidiary Guarantor (and to correspondingly reduce commitments with
respect thereto), provided that if the Company or any Subsidiary Guarantor
shall so repay Pari Passu Indebtedness, it will equally and ratably reduce
Indebtedness under the Notes if the Notes are then redeemable, or if the Notes
may not then be redeemed, the Company shall make an offer in accordance with
the procedures set forth in Section 3.10 hereof to all Holders of Notes to
purchase at a price in cash equal to 100% of the principal amount thereof (plus
accrued and unpaid interest thereon to the date of purchase), such amount of
Notes that would otherwise be redeemed or (c) an investment in property, the
making of a capital expenditure or the acquisition of other long-term assets,
in each case, of or from an entity that is engaged in a Permitted Business, and
in accordance with the terms of this Indenture. Pending the final application
of any such Net Proceeds, the Company may temporarily reduce Designated Senior
Debt or otherwise invest such Net Proceeds in any manner that is not prohibited
by this
39
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding sentence of this paragraph will be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $10.0 million, the Company shall be required to make an Asset Sale
Offer to purchase the maximum principal amount of Notes that may be purchased
out of the Excess Proceeds at an offer price in cash in an amount equal to 100%
of the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase, in accordance with the procedures set forth in Section 3.10
hereof. To the extent that the aggregate amount of Notes tendered pursuant to
an Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased in
accordance with the procedures set forth in Section 3.02 hereof. Upon
completion of such Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Indenture relating to such Asset Sale Offer, the Company will comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
Section 4.11. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly: (a) declare or pay any dividend or make any other
payment or distribution on account of any Equity Interests of the Company or
any of its Subsidiaries (other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company or any Wholly Owned Subsidiary of the
Company); (b) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company (other than any such Equity Interests owned by
the Company or any Wholly Owned Subsidiary of the Company); (c) make any
payment on with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness that is subordinated in right of payment
to the Notes, except a payment of interest or principal at Stated Maturity; or
(d) make any Restricted Investment (all such payments and other actions set
forth in clauses (a) through (d) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
40
(ii) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.12 hereof; and
(iii) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries after
the date of this Indenture is less than the sum of (A) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) 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, less 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds received by the Company from
the issue and sale by the Company since the Closing Date of Equity
Interests of the Company (other than Disqualified Stock) or of Disqualified
Stock or debt securities of the Company to the extent that they have been
converted into such Equity Interests (other than any such Equity Interests,
Disqualified Stock or convertible debt securities sold to a Subsidiary of
the Company and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified Stock).
The foregoing provisions shall not prohibit:
(a) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment would have
complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other
acquisition of any Pari Passu Indebtedness or subordinated Indebtedness or
Equity Interests of the Company in exchange for, or out of the net proceeds
of, the substantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (iii)(B) of the preceding
paragraph;
(c) the defeasance, redemption, repurchase retirement or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Subsidiary of the
Company held
41
by any member of the Company's management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date
of this Indenture; provided, however, that (i) the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $2.0 million in any twelve-month period plus the aggregate cash
proceeds received by the Company during such twelve-month period from any
reissuance of Equity Interests by the Company to members of management of
the Company and its Subsidiaries and (iis) no Default or Event of Default
shall have occurred and be continuing immediately after such transaction;
(e) payments and transactions in connection with the Refinancing
Plan, the New Credit Agreement (including commitment, syndication and
arrangement fees payable thereunder), the Offering and the Common Stock
Offering (including underwriting discounts and commissions in connection
therewith) and the application of the proceeds thereof; and the payment of
the fees and expenses with respect thereto; and
(f) the declaration and payment of dividends to holders of any
class or series of preferred stock (other than Disqualified Stock) issued
after the Closing Date; provided, however, that at the time of such
issuance, after giving effect to such issuance on a pro forma basis, the
Fixed Charge Coverage Ratio for the Company for the most recently ended
four full fiscal quarters for which internal financial statements are
available immediately preceding the date of such issuance would have been
no less than 2.0 to 1.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined by the
Board of Directors whose resolution with respect thereto shall be delivered to
the Trustee. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officer's Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant described in this section 4.11 were
computed.
Section 4.12. Limitation on Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, (i) and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become, directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Indebtedness), (ii) permit any of its Subsidiaries to issue any shares
of Disqualified Stock and (iii) permit any of its Subsidiaries that are not
Subsidiary
42
Guarantors to issue any shares of preferred stock; provided, however, that the
Company and any Subsidiary Guarantor may incur Indebtedness (including Acquired
Indebtedness) or issue shares of Disqualified Stock, if the Company's Fixed
Charge Coverage Ratio for the Company's most recently ended four fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
shares of Disqualified Stock are issued would have been at least 2.00 to 1.00,
determined on a consolidated pro forma basis (including a pro forma application
of the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.
Notwithstanding the foregoing, the Company and, to the extent set
forth below, its Subsidiaries may incur the following:
(a) Indebtedness of the Company under the Notes and this
Indenture and Indebtedness of Subsidiaries under the Subsidiary Guarantees;
(b) Indebtedness under the New Credit Agreement in an aggregate
principal amount not to exceed $160.0 million outstanding at any time;
(c) Existing Indebtedness;
(d) Capital Expenditure Indebtedness, Capitalized Lease
Obligations and purchase money Indebtedness of the Company and its
Subsidiaries in an aggregate principal amount not to exceed $20.0 million
at any time outstanding;
(e) the incurrence by the Company or any of its Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding;
(f) Indebtedness of the Company representing guarantees of
Indebtedness incurred by one of its Subsidiaries pursuant to, and in
compliance with, another provision of this covenant;
(g) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Wholly Owned Subsidiaries; provided, however, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations with
respect to the Notes and (ii) (A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Wholly Owned Subsidiary and (B) any sale
or other transfer of any such Indebtedness to a Person that is not either
the Company or a
43
Wholly Owned Subsidiary shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Subsidiary, as the
case may be;
(h) any Permitted Refinancing Indebtedness representing a
replacement, renewal, refinancing or extension of Indebtedness permitted
under the first paragraph and clause (c) of this covenant;
(i) Indebtedness arising from agreements of the Company or any
Subsidiary Guarantor providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary,
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; provided, however, that (1) such Indebtedness
is not reflected on the balance sheet of the Company or any Subsidiary
Guarantor (contingent obligations referred to in a footnote or footnotes to
financial statements and not otherwise reflected on the balance sheet will
not be deemed to be reflected on such balance sheet for purposes of this
clause (1)) and (2) the maximum assumable liability in respect of such
Indebtedness shall at no time exceed the gross proceeds including noncash
proceeds (the fair market value of such noncash proceeds being measured at
the time received and without giving effect to any subsequent changes in
value) actually received by the Company and/or the Subsidiary Guarantors in
connection with such disposition; and
(j) additional Indebtedness of the Company and its Subsidiaries
in an aggregate principal amount not to exceed $30.0 million at any time
outstanding.
For purposes of determining compliance with this Section 4.12, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories described in clauses (a) through (j) above or is entitled to be
incurred pursuant to the first paragraph of this covenant, the Company shall,
in its sole discretion, classify such item of Indebtedness in any manner that
complies with this covenant and such item of Indebtedness will be treated as
having been incurred pursuant to only one of such clauses or pursuant to the
first paragraph hereof.
Section 4.13. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Subsidiaries
to, make any payment to, or sell, lease, transfer or otherwise dispose of any
of its properties or assets to, or purchase any property or assets from, or
enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Company (each of the foregoing, an "Affiliate Transactions"),
unless (a) 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
44
Company or such Subsidiary with an unrelated Person, and (b) the Company
delivers to the Trustee (i) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess
of $1.0 million, either (A) a resolution of the Board of Directors of the
Company set forth in an Officer's Certificate certifying that such Affiliate
Transaction complies with clause (a) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors of the Company and (ii) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, an opinion as to the fairness to the Company of such
Affiliate Transaction from a financial point of view issued by an independent
accounting, appraisal or investment banking firm of national standing;
provided, however, that the following shall be deemed not to be Affiliate
Transactions: (i) customary directors' fees, indemnification or similar
arrangements or any employment agreement or other compensation plan or
arrangement entered into by the Company or any of its Subsidiaries in the
ordinary course of business (including ordinary course loans to employees not
to exceed (A) $3.0 million outstanding in the aggregate at any time and (B)
$1.5 million to any one employee) consistent with the past practice of the
Company or such Subsidiary; (ii) transactions between or among the Company
and/or its Wholly Owned Subsidiaries; (iii) transactions permitted by the
provisions of this Indenture in accordance with the provisions of Section 4.11
hereof; (iv) payments of customary fees by the Company or any of its
Subsidiaries to DLJMB made for any financial advisory, financing, underwriting
or placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures
which are approved by a majority of the Board of Directors of the Company in
good faith; (v) any agreement as in effect on the date of this Indenture or any
amendment to such agreement (so long as such amendment is not disadvantageous
to the Holders of the Notes in any material respect) or any transaction
contemplated by such agreement; (vi) the existence of, or the performance by
the Company of any of its Subsidiaries of its obligations under the terms of,
any stockholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the date of
this Indenture and any similar agreements which it may enter into thereafter so
long as such similar agreements contain only terms that are customary of
stockholders and registration rights agreements; and (vii) payments and
transactions in connection with the Refinancing Plan, the New Credit Agreement
(including commitment, syndication and arrangement fees payable thereunder),
the Offering and the Common Stock Offering (including underwriting discounts
and commissions in connection therewith) and the application of the proceeds
thereof, and the payment of the fees and expenses with respect thereto.
Section 4.14. Dividend 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 encumbrance or restriction on the ability of any
Subsidiary to (a)(I) pay dividends or make any other distributions to the
Company or any of its Subsidiaries on its Capital Stock or with respect to
45
any other interest or participation in, or measured by, its profits, or (II)
pay any Indebtedness owed to the Company or any of its Subsidiaries, (b) make
loans or advances to the Company or any of its Subsidiaries or (c) 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 (i)
agreements governing Existing Indebtedness as in effect on the Closing Date,
(ii) the New Credit Agreement as in effect on the Closing Date and any
refinancings, amendments, restatements, renewals or replacements thereof,
provided, however, that the agreements governing such refinancings, amendments,
restatements, renewals or replacements contain restrictions are not more
restrictive in the aggregate than those contained in the New Credit Agreement
as in effect on the Closing Date, (iii) this Indenture, the Notes and the
Subsidiary Guarantees, (iv) applicable law or any applicable rule, regulation
or order, (v) any agreement or other instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Subsidiaries as
in effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred, (vi) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (vii) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (c) above on the property so acquired, (viii) customary provisions in
bona fide contracts for the sale of property or assets, or (ix) Permitted
Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not more
restrictive in the aggregate than those contained in the agreements governing
the Indebtedness being refinanced.
Section 4.15. Limitations on Issuances and Sales of Capital Stock of
Wholly Owned Subsidiaries
The Company (a) shall not permit any Wholly Owned Subsidiary of the
Company to issue any of its Equity Interests to any Person other than to the
Company or a Wholly Owned Subsidiary of the Company, and (b) shall not, and
shall not permit any Wholly Owned Subsidiary of the Company to, transfer,
convey, sell, lease or otherwise dispose of any Capital Stock of any Wholly
Owned Subsidiary of the Company to any Person (other than the Company or any
Wholly Owned Subsidiary of the Company) unless (i) such transfer, conveyance,
sale, lease or other disposition is of all of the Capital Stock of such Wholly
Owned Subsidiary and (ii) the Net Proceeds from such transfer, conveyance,
sale, lease or other disposition are applied in accordance with Section 4.10
hereof; provided that this clause (b) shall not apply to any pledge of Capital
Stock of any Wholly Owned Subsidiary of the Company securing Indebtedness under
the New Credit Agreement.
Section 4.16. Additional Subsidiary Guarantees
46
If the Company or any of its Subsidiaries shall, after the Closing
Date, acquire or create another Subsidiary, then such newly acquired, created
or designated Subsidiary shall execute a Subsidiary Guarantee and deliver an
Opinion of Counsel in accordance with the terms of this Indenture.
Section 4.17 Limitations on Liens.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
that secures obligations under any Pari Passu Indebtedness or subordinated
Indebtedness on any asset or property now owned or hereafter acquired by the
Company or any of its Subsidiaries, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, unless the Notes or the
Subsidiary Guarantees, as applicable, are equally and ratably secured with the
obligations so secured until such time as such obligations are not longer
secured by a Lien; provided, that in any case involving a Lien securing
subordinated Indebtedness, such Lien is subordinated to the Lien securing the
Notes or the Subsidiary Guarantees, as applicable, to the same extent that such
subordinated Indebtedness is subordinated to the Notes or the Subsidiary
Guarantees, as applicable.
Section 4.18 Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Subsidiaries
to, enter into any sale and leaseback transaction; provided, however, that the
Company or any Subsidiary may enter into a sale and leaseback transaction if
(a) the Company could have (i) incurred Indebtedness in an amount equal to the
Attributable Indebtedness relating to such sale and leaseback transaction
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.12 hereof and (ii) incurred a Lien to secure such
Indebtedness pursuant to Section 4.17 hereof, (b) the gross cash proceeds of
such sale and leaseback transaction are at least equal to the fair market value
(as determined in good faith by the Board of Directors of the Company and set
forth in an Officer's Certificate delivered to the Trustee) of the property
that is the subject of such sale and leaseback transaction and (c) the transfer
of assets in such sale and leaseback transaction is permitted by, and the
Company applies the proceeds of such transaction in compliance with, Section
4.10 hereof.
Section 4.19 No Senior Subordinated Debt.
(a) The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Notes.
(b) No Subsidiary Guarantor shall incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is subordinate
or junior in right of payment
47
to any Senior Debt and senior in any respect in right of payment to such
Subsidiary Guarantor's Subsidiary Guarantee.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (a) the Company is the surviving corporation, or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia, (b) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the
Obligations of the Company under the Notes and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee, (c)
immediately after such transaction no Default or Event of Default exists, and
(d) except in the case of a merger of the Company with or into a Wholly Owned
Subsidiary of the Company, the Company 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 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 pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of the covenant described in Section 4.12 hereof.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease or conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to such successor) and may exercise every right and power of the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay the
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principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default and Notice Thereof.
Each of the following constitutes an "Event of Default":
(a) default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by the provisions of Article 10 hereof);
(b) default in payment when due of the principal of or premium (if
any) on the Notes (whether or not prohibited by the provisions of Article
10 hereof);
(c) failure by the Company to comply with the provisions of Sections
4.09, 4.10, 4.11, 4.12 or 5.01;
(d) failure by the Company for 60 days after notice to comply with any
of its other agreements in this Indenture or the Notes;
(e) 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 now exists or is
created after the Closing Date, which default (i) is caused by a failure to
pay principal of or premium (if any) or interest on such Indebtedness at
its final stated maturity prior to the expiration of any grace period
provided in such Indebtedness (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated,
aggregates $5.0 million or more;
(f) failure by the Company or any of its Subsidiaries to pay final
judgments aggregating in excess of $5.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days;
(g) failure by any Subsidiary Guarantor to perform any covenant set
forth in its Subsidiary Guarantee, or the repudiation by any Subsidiary
Guarantor of its obligations
49
under its Subsidiary Guarantee or the unenforceability of any Subsidiary
Guarantee against a Subsidiary Guarantor for any reason, unless, in each
such case, such Subsidiary Guarantor and its Subsidiaries have no
Indebtedness outstanding at such time or at any time thereafter;
(h) the Company or any of its Subsidiaries that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; and
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Subsidiaries that is a Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any of its
Subsidiaries that is a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its
Subsidiaries that is a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its
Subsidiaries that is a Significant Subsidiary; and the order or decree
remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately; provided, that so long
as any Indebtedness permitted to be incurred pursuant to the New Credit
Agreement shall be outstanding, such acceleration shall not be effective until
the earlier of (a) any acceleration of any such Indebtedness under the New
Credit Agreement and (b) five Business Days after receipt by the Company of
written notice of
50
such acceleration. Notwithstanding the foregoing, in the case of an Event of
Default specified in clause (h) or (i) of Section 6.01 hereof with respect to
the Company, any Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary, all outstanding
Notes will become due and payable without further action or notice. Holders of
the Notes may not enforce this Indenture or the Notes except as provided in
this Indenture. In the event of a declaration of acceleration of the Notes
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (e) of Section 6.01, the
declaration of acceleration of the Notes shall be automatically annulled if the
holders of any Indebtedness described in such clause (e) have rescinded the
declaration of acceleration in respect of such Indebtedness within 30 days of
the date of such declaration and if (i) the annulment of the acceleration of
the Notes would not conflict with any judgment or decree of a court of
competent jurisdiction, and (ii) all existing Events of Default, except
nonpayment of principal or interest on the Notes that became due solely because
of the acceleration of the Notes, have been cured or waived.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of Section 3.08(a) hereof, an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes. If an Event of Default occurs prior to
, 2003 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then the amount payable in respect
of such Notes for purposes of this paragraph for each of the twelve-month
periods beginning on of the years indicated below shall become due and payable
to the extent permitted by law upon the acceleration of the Notes as set forth
below, expressed as percentages of the principal amount that would otherwise be
due but for the provisions of this sentence, plus accrued and unpaid interest
to the date of payment:
Year Percentage
---- ----------
1998. . . . . . . . . . . . . . . . . . . . . . . .
1999. . . . . . . . . . . . . . . . . . . . . . . .
2000. . . . . . . . . . . . . . . . . . . . . . . .
2001. . . . . . . . . . . . . . . . . . . . . . . .
2002. . . . . . . . . . . . . . . . . . . . . . . .
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Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding, by notice to the Trustee, may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under this Indenture, except a continuing Default or Event of
Default in the payment of interest or premium (if any) on, or principal of, the
Notes. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in such Holders' interest.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability. The Trustee may take any other action which it
deems proper which is not inconsistent with any such direction.
Section 6.06. Limitation on Suits.
No Holder of a Note will have any right to institute any proceeding
with respect to this Indenture or for any remedy hereunder, unless (i) such
Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes, (ii) the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding shall
have made written request to the Trustee to institute such proceeding and, if
requested by the Trustee, provided reasonable indemnity to the Trustee, with
respect to such proceeding, and
52
(iii) the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, premium, if any, and
interest on any Note, on or after the respective due dates expressed in any
Note, 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(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the
Notes and interest on overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company, the Subsidiary Guarantors or any other obligor upon the Notes, and
their respective creditors or property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims, and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, as administrative expenses associated with any such proceeding, and in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation
53
or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money, subject to Article 10 hereof, in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to holders of Senior Debt to the extent required by Article 10
hereof;
Third: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively;
Fourth: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
Fifth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default shall occur (which shall not be cured), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; 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, provided,
that the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (e) and (f) of this Section 7.01 and Section 7.02 hereof.
55
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture unless
the Holders shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereof in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and 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 that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Notes unless such Holders of Notes shall have offered to
the Trustee reasonable security or indemnity satisfactory to it against any
loss, liability or expense.
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Section 7.03. Individual Rights of Trustee.
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company with the same
rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the direction of the Company under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document furnished or issued in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
actually known to the Trustee, the Trustee shall mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following
the Closing Date, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the
57
Notes are listed in accordance with TIA Section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee, from time to time as may be
agreed upon between them, reasonable compensation for its acceptance of this
Indenture and services hereof. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any
claim (whether asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence, wilful misconduct or bad faith. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall reasonably cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Section 6.01(h) or (i) hereof,
the expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
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The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring
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Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The successor
Trustee shall mail a notice of its succession to Holders of the Notes. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, provided all sums owing to the retiring Trustee have
been paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business (including the trust
created by this Indenture) to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereof that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has, or is a wholly owned subsidiary of a bank
holding company that has, a combined capital and surplus of at least $500
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against the Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 7.12. Rights of Holders with Respect to Time, Method and
Place.
Subject to the limitations of Article 6 and 7 of this Indenture, a
majority in principal amount of the outstanding Notes issued hereunder shall
have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee.
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 8.02 or Section 8.03 hereof
be applied to all Notes and Subsidiary Guarantees then outstanding upon
compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and the Subsidiary Guarantors,
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their respective obligations
with respect to all Notes and Subsidiary Guarantees then outstanding on the
date the conditions set forth below are satisfied ("Legal Defeasance"). For
this purpose such defeasance means that the Company and any Subsidiary
Guarantor shall be deemed to have paid and discharged the entire indebtedness
represented by the Notes and any Subsidiary Guarantees outstanding, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
and the other Sections of this Indenture referred to in clauses (i) and (ii) of
this Section 8.02, and to have satisfied all its other obligations under such
Notes, Subsidiary Guarantees and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, premium,
if any, and interest on such Notes when such payments are due or on the
redemption date, as the case may be, solely from amounts deposited with the
Trustee as provided in Section 8.04 hereof, (ii) the Company's obligations with
respect to the Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 4.02
and 4.03 hereof, (iii) the rights, powers, trusts, duties, indemnities and
immunities of the Trustee and the Company's obligations in connection therewith
and (iv) this Section 8.02.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Subsidiary Guarantor
shall be released from its obligations under the covenants contained in Article
5 and in Sections 4.04, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17,
4.18 and 4.19 with respect to the outstanding Notes and Subsidiary Guarantees,
on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes and the Subsidiary
Guarantees shall thereafter be deemed to be not "outstanding" for the purposes
of any direction, waiver, consent
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or declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes and
Subsidiary Guarantees shall not be deemed outstanding for financial accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes and Subsidiary Guarantees, the Company and any
Subsidiary Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01(c)
hereof, but, except as specified above, the remainder of this Indenture and
such Notes and Subsidiary Guarantees shall be unaffected thereby. In addition,
upon the Company's exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, Sections 6.01(d) through 6.01(g) shall not constitute
Events of Default.
Section 8.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 hereof to the outstanding Notes and Subsidiary Guarantees:
(i) the Company shall have irrevocably deposited with the
Trustee, in trust, for the benefit of the Holders of the Notes and without
retaining any legal interest corpus of such trust, cash in U.S. dollars,
non-callable Government Securities, 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 due on the outstanding Notes on the stated maturity
thereof or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or to
a particular redemption date;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the United States Internal
Revenue Service a ruling or (B) since the Closing Date, there has been a
change in the applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel in the United States
shall confirm that, subject to customary assumptions and exclusions, the
Holders of the outstanding Notes will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such Legal Defeasance
and will be subject to U.S. 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;
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(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to customary
assumptions and exclusions, the Holders of the outstanding Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and will be subject to such U.S. 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;
(iv) 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 set forth in Section 6.01(h) and
(i), at any time in the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
satisfied until the expiration of such period);
(v) such Legal Defeasance or Covenant Defeasance shall 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;
(vi) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, as of the date of such opinion and subject
to customary assumptions and exclusions (which assumptions and exclusions
shall not relate to the operation of Section 547 of the United States
Bankruptcy Code or any analogous New York State law provision or related
judicial decisions) after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, and that the Trustee has a perfected security interest in such
trust funds for the ratable benefit of the Holders;
(vii) the Company shall have delivered to the Trustee an
Officer's Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or a Subsidiary Guarantor, if any;
(viii) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel in the United States (which
Opinion of Counsel may be subject to customary assumptions and exclusions)
each stating that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance, as the case may be, have been
complied with; and
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(ix) the Trustee shall have received such other documents and
assurances as the Trustee shall reasonably require.
Section 8.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 4.03
hereof, all money and Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof
in respect of the Notes then outstanding shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof; other than any such tax, fee or other
charge which by law is for the account of the Holders of the Notes then
outstanding.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time at the Company's
request any money or Government Securities held by it as provided in Section
8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(i) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
Subject to Section 7.07 hereof, the Trustee shall promptly pay to the
Company, after written request by the Company therefor, any money held at such
time in excess of the amounts required to pay any of the Company's Obligations
then owing with respect to the Notes.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest, if any, have become due and
payable shall be paid to the Company at the request of the Company or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such
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Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, shall at
the expense of the Company (i) cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company,
and (ii) cause notice to be promptly sent to each Holder that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or Government Securities in accordance with Section 8.02 hereof or
Section 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's and any Guarantor's
obligations under this Indenture, the Notes and the Subsidiary Guarantees,
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 hereof or Section 8.03 hereof, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 hereof or Section 8.03 hereof, as the case may be;
provided, however, that if the Company or any Subsidiary Guarantor makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company or such Subsidiary Guarantor
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 hereof, without the consent of any Holder
of Notes, the Company, a Subsidiary Guarantor (with respect to a Subsidiary
Guarantee or this Indenture to which it is a party) and the Trustee may amend
or supplement this Indenture, the Notes or the Subsidiary Guarantees:
(a) to cure any ambiguity, defect or inconsistency;
65
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to comply with Article 5 or 11 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not, in the Opinion of
Counsel, adversely affect the legal rights hereunder of any such Holder;
(e) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA; or
(f) to allow any Subsidiary Guarantor to guarantee the Notes.
Upon the written request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of an Officer's Certificate and an
Opinion of Counsel, the Trustee shall join with the Company and the Subsidiary
Guarantors, if any, in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, this Indenture, the
Notes and the Subsidiary Guarantees issued hereunder may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or a tender offer or
exchange offer for, the Notes), and, subject to Sections 6.02, 6.04 and 6.07
hereof, any existing default or compliance with any provision of this
Indenture, the Notes or the Subsidiary Guarantees may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Notes (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of an Officer's Certificate and an Opinion of Counsel, the Trustee shall join
with the Company and any Subsidiary Guarantor in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture affects
the Trustee's own rights, duties or immunities under this Indenture or
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otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
The consent of the Holders is not necessary under this Section 9.02 to
approve the particular form of any proposed amendment. It is sufficient if such
consent approves the substance of the proposed amendment.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture, the Notes or the Subsidiary Guarantees.
However, without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Note or Subsidiary Guarantee held by a
non-consenting Holder):
(i) reduce the principal amount of the Notes whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption of the Notes
(including provisions relating to Sections 4.09 and 4.10 hereof);
(iii) reduce the rate of or change the time for payment of
interest on any Note;
(iv) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of such Notes and a waiver of the
payment default that resulted from such acceleration);
(v) make any Note payable in money other than that stated in such
Notes;
(vi) make any change in Section 6.04 or Section 6.07 hereof;
(vii) waive a redemption or repurchase payment with respect to
any Note (including a payment required by Section 3.10, 4.09 or 4.10
hereof);
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(viii) except as provided under Article 8 or in accordance with
the terms of any Subsidiary Guarantee, release a Subsidiary Guarantor from
its obligations under its Subsidiary Guarantee, or make any change in a
Subsidiary Guarantee that would adversely affect the Holders of the Notes;
or
(ix) make any change in the foregoing amendment and waiver
provisions of this Article 9.
Notwithstanding the foregoing, any amendment or waiver relating to
Article 10 or 12 hereof will require the consent of the Holders of at least 75%
in aggregate principal amount of the Notes then outstanding if such amendment
would adversely affect the rights of Holders of Notes.
Section 9.03. Compliance With TIA.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may, but shall not be required to, place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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Section 9.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it. In signing or refusing to sign any amended or
supplemental indenture the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon an Officers's
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture,
that it is not inconsistent herewith, and that it will be valid and binding
upon the Company and the Subsidiary Guarantors, in accordance with its terms.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees, that
the payment of principal of, premium (if any), and interest on the Notes shall
be subordinated in right of payment, as set forth in this Article 10, to the
prior payment in full of all Senior Debt, whether outstanding on the date
hereof or thereafter incurred. For purposes of this Article 10 and Article 12
hereof, "payment in full" means payment of cash.
The provisions of this Article 10 shall constitute a continuing offer
to all Persons that, in reliance upon such provisions, become holders of, or
continue to hold Senior Debt; such provisions are made for the benefit of
holders of Senior Debt and they or each of them may enforce the rights of
holders of Senior Debt hereunder, subject to the terms and provisions hereof.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities, the holders of all Senior Debt shall be entitled to
receive payment in full of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt) before the Holders of Notes will be
entitled to receive any payment of cash, securities or other property with
respect to Obligations due in respect of the Notes, and until all Obligations
with respect to Senior Debt are paid in full, any payment, distribution or
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other transfer of assets of the Company or any Subsidiary Guarantor of any
character, whether direct or indirect, by set-off or otherwise, and whether in
cash, securities or other property to which the Holders of Notes would be
entitled, shall be made to the holders of Senior Debt (except that Holders of
Notes may receive Permitted Junior Securities and payments made from the trusts
described in Article 8 hereof).
Section 10.03. Default on Designated Senior Debt.
The Company may not make any payment upon or in respect of the Notes
(except payments in Permitted Junior Securities and payments made from the
trusts described in Article 8 hereof) if:
(a) a default in the payment of the principal of, premium, if any, or
interest on any Designated Senior Debt occurs and is continuing beyond any
applicable period of grace, if any; or
(b) any other default occurs and is continuing with respect to any
Designated Senior Debt that permits holders of the Designated Senior Debt
as to which such default relates to accelerate its maturity and the Trustee
receives written notice of such default (a "Payment Blockage Notice") from
the Company or the holders of any Designated Senior Debt (or their
representative).
Payments on the Notes may and shall be resumed (i) in the case of a
payment default, upon the date on which such default is cured or waived and
(ii) in case of a nonpayment default, 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 any
Designated Senior Debt has been accelerated. No new period of payment blockage
may be commenced unless and until 360 days have elapsed since the effectiveness
of the immediately prior Payment Blockage Notice. No nonpayment default that
existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default shall have been cured or waived for a
period of not less than 90 days.
Section 10.04. Acceleration of Securities.
If the Company fails to make any payment on the Notes when due or
within any applicable grace period, whether or not on account of the payment
blockage provision referred to above, such failure shall constitute an Event of
Default and shall entitle the Holders of the Notes to accelerate the maturity
thereof, subject to the terms of Section 6.02 hereof. The Company shall
promptly notify holders of Senior Debt (or their representatives) if payment of
the Notes is accelerated because of an Event of Default.
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Section 10.05. When Distribution Must be Paid Over.
In the event that the Trustee receives any payment upon or in respect
of the Notes at a time when the Trustee has actual knowledge that such payment
is prohibited by Section 10.02 or 10.03 hereof, such payment shall be held by
the Trustee in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt (or their
representative) under the indenture or other agreement (if any) pursuant to
which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Senior Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
In the event that any Holder receives any payment on any Note at any
time when such payment is prohibited by Section 10.02 or 10.03 hereof, such
payment shall be held by such Holder in trust for the benefit of, and shall be
paid forthwith over and delivered, upon written request to, the holders of
Senior Debt (or their representative) under the indenture or other agreement
(if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for the application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extend
necessary to pay such Obligations in full accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall
be entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
Section 10.06. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment upon or in respect of
the Notes to violate this Article 10, but failure to give such notice shall not
affect the subordination of the Notes to Senior Debt as provided in this
Article 10.
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Section 10.07. Subrogation.
After all Senior Debt is paid in full and until the Notes are paid in
full in cash, Holders of Notes shall be subrogated (equally and ratably with
all other Pari Passu Indebtedness) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been applied to
the payment of Senior Debt. A distribution made under this Article 10 to
holders of Senior Debt that otherwise would have been made to Holders of Notes
is not, as between the Company and Holders, a payment by the Company on the
Senior Debt.
Section 10.08. Relative Rights.
This Article 10 defines the relative rights of Holders of Notes and
holders of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on the Notes in accordance with
their terms;
(b) affect the relative rights of Holders of Notes and creditors of
the Company, other than their rights in relation to holders of Senior Debt;
or
(c) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal of,
premium, if any, or interest on a Note on the due date, the failure is
nevertheless a Default or an Event of Default.
Section 10.09. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
representative.
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Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders of Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment on any Note to
violate this Article 10. Only the Company or a representative of the holders of
Senior Debt may give the notice. Nothing in this Article 10 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder of Notes, by the Holder's acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article 10, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.01(h) and 6.01(i) and Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, a representative of Designated
Senior Debt is hereby authorized to file an appropriate claim for and on behalf
of the Holders of the Notes.
Section 10.13. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act, in good faith, by any such
holder.
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(b) Without in any way limiting the generality of paragraph (a) of
this Section 10.13, the holders of Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article 10 or the
obligations hereunder of the Holders to the holders of Senior Debt, do any one
or more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, any Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (3) release any Person
liable in any manner for the collection of Senior Debt; and (4) exercise or
refrain from exercising any rights against the Company and any other Person.
Section 10.14. Certain Definitions.
For purposes of this Section 10, the terms "distribution" and
"payment" include payments, distributions and other transfers of assets by or
on behalf of the Company (including redemptions, repurchases or other
acquisitions of the Notes) from any source, of any kind or character, whether
direct or indirect, by set-off or otherwise, whether in cash, property or
securities.
ARTICLE 11
GUARANTEE OF NOTES
Section 11.01. Subsidiary Guarantee.
Subject to Section 11.05 hereof, the Subsidiary Guarantors hereby,
jointly and severally, unconditionally guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes held thereby and the Obligations of the Company hereunder
and thereunder, that: (a) the principal of and interest and premium, if any, on
the Notes will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal and to the extent permitted by law,
interest on any overdue interest, on the Notes, and all other payment
Obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full and performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, the same will
be promptly paid in full when due in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at stated maturity,
by acceleration, redemption or otherwise. Failing payment when so due of any
amount so
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guaranteed or any performance so guaranteed for whatever reason, the Subsidiary
Guarantors will be jointly and severally obligated to pay the same immediately.
An Event of Default under this Indenture or the Notes shall constitute an event
of default under the Subsidiary Guarantees, and shall entitle the Holders to
accelerate the Obligations of the Subsidiary Guarantors hereunder in the same
manner and to the same extent as the Obligations of the Company. The Subsidiary
Guarantors hereby agree that their Obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that this Subsidiary Guarantee will
not be discharged except by complete performance of the Obligations contained
in the Notes and this Indenture. If any Holder or the Trustee is required by
any court or otherwise to return to the Company, the Subsidiary Guarantors, or
any Custodian, trustee, liquidator or other similar official acting in relation
to either the Company or the Subsidiary Guarantors, any amount paid by the
Company or any Subsidiary Guarantor to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Subsidiary Guarantor agrees that it
shall not be entitled to, and hereby waives, any right of subrogation in
relation to the Holders in respect of any Obligations guaranteed hereby. Each
Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the Obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of its Subsidiary Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed thereby, and (ii) in the event of any
declaration of acceleration of such Obligations as provided in Article 6
hereof, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantor for the purpose of its
Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the exercise
of such right does not impair the rights of the Holders under the Subsidiary
Guarantees.
Section 11.02. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 10.01
hereof, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form of Exhibit D hereto shall be
endorsed by manual or facsimile signature by an officer of such Subsidiary
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Subsidiary Guarantor, by manual
or facsimile signature, by an officer of such Subsidiary Guarantor.
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After the Closing Date, if the Company or any or its Subsidiaries
shall acquire, create or designate a Subsidiary, then the Company shall cause
such Subsidiary to execute a Subsidiary Guarantee substantially in the form of
Exhibit B. Such Subsidiary Guarantee shall be accompanied by a supplemental
indenture substantially in the form of Exhibit C, along with such other
opinions, certificates and documents required under this Indenture.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Subsidiary Guarantee.
If an officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
set forth in this Indenture on behalf of the Subsidiary Guarantors.
Section 11.03. Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture shall prohibit a merger between a Subsidiary Guarantor and
another Subsidiary Guarantor or a merger between a Subsidiary Guarantor and the
Company.
(b) No Subsidiary Guarantor shall consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person), or
sell all or substantially all of its assets to, another Person, whether or not
affiliated with such Subsidiary Guarantor, unless, other than with respect to a
merger between a Subsidiary Guarantor and another Subsidiary Guarantor or a
merger between a Subsidiary Guarantor and the Company, (i) subject to the
provisions of Section 11.04 hereof, the Person formed by or surviving any such
consolidation or merger (if other than such Subsidiary Guarantor) assumes all
the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture substantially in the form of Exhibit C hereto, under the Subsidiary
Guarantee of such Subsidiary Guarantor and this Indenture; (ii) immediately
after giving effect to such transaction, no Default or Event of Default exists;
and (iii) the Company would be permitted, immediately after giving effect to
such transaction, to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Interest Coverage Ratio test set forth in the first
paragraph of Section 4.12.
(c) In the case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and substantially in the form of Exhibit
C hereto, of the Subsidiary Guarantee endorsed upon the Notes and the due and
punctual performance of all of the
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covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor Person shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor; provided that, solely for purposes of computing
Consolidated Net Income; the Consolidated Net Income of any Person other than
the Company and its Subsidiaries shall only be included for periods subsequent
to the effective time of such merger, consolidation, combination or transfer of
assets. Such successor Person thereupon may cause to be signed any or all of
the Subsidiary Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed and delivered to the
Trustee. All of the Subsidiary Guarantees so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Subsidiary Guarantees had been issued at
the date of the execution hereof.
Section 11.04. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the Equity
Interests of any Subsidiary Guarantor (including by way of merger or
consolidation), or a sale or other disposition of all or substantially all of
the assets of such Subsidiary Guarantor, then such Subsidiary Guarantor (in the
event of a sale or other disposition of all of the capital stock of such
Subsidiary Guarantor) 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
Subsidiary Guarantor) shall be released and relieved of any obligations under
its Subsidiary Guarantee; provided, however, that (i) the Net Proceeds from
such sale or other dispositions are applied in accordance with the provisions
of Section 4.10 hereof and (ii) the Company is in compliance with all other
provisions of this Indenture applicable to such disposition. Upon delivery by
the Company to the Trustee of an Officer's Certificate to the effect of the
foregoing, the Trustee shall execute any documents reasonably required in order
to evidence the release of any Subsidiary Guarantor from its Obligation under
its Subsidiary Guarantee. Any Subsidiary Guarantor not released from its
Obligations under its Subsidiary Guarantee shall remain liable for the full
amount of principal of, premium, if any, and interest on the Notes and for the
other Obligations of such Subsidiary Guarantor under this Indenture as provided
in this Article 11.
Section 11.05. Limitation on Subsidiary Guarantor Liability.
For purposes hereof, each Subsidiary Guarantor's liability shall be
limited to the lesser of (a) the aggregate amount of the Obligations of the
Company under the Notes and this Indenture and (b) the amount, if any, which
would not have (i) rendered such Subsidiary Guarantor "insolvent" (as such term
is defined in applicable Bankruptcy Law) or (ii) left such Subsidiary Guarantor
with unreasonably small capital at the time its Subsidiary Guarantee was
entered into; provided, however, that, it will be a presumption in any lawsuit
or other proceeding in which a Subsidiary Guarantor is a party that the amount
guaranteed pursuant to the Subsidiary Guarantee is the amount set forth in
clause (a) above unless any creditor, or
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representative of creditors of such Subsidiary Guarantor, or debtor in
possession or trustee in bankruptcy of the Subsidiary Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of the Subsidiary
Guarantor is the amount set forth in clause (b) above. In making any
determination as to solvency or sufficiency of capital of a Subsidiary
Guarantor in accordance with the previous sentence, the right of such
Subsidiary Guarantor to contribution from other Subsidiary Guarantors, and any
other rights such Subsidiary Guarantor may have, contractual or otherwise,
shall be taken into account.
Section 11.06. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article 11 shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 11 in place of the Trustee.
ARTICLE 12
SUBORDINATION OF SUBSIDIARY GUARANTEES
Section 12.01. Agreement to Subordinate.
The Subsidiary Guarantors agree, and each Holder by accepting a Note
agrees, that all Subsidiary Guarantees, shall be subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all Senior Debt, whether outstanding on the date
hereof or thereafter incurred.
The provisions of this Article 12 shall constitute a continuing offer
to all Persons that, in reliance upon such provisions, become holders of, or
continue to hold Senior Debt; such provisions are made for the benefit of
holders of Senior Debt and they or each of them may enforce the rights of
holders of Senior Debt hereunder, subject to the terms and provisions hereof.
Section 12.02. Liquidation: Dissolution; Bankruptcy.
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Upon any distribution to creditors of any Subsidiary Guarantor in a
liquidation or dissolution of such Subsidiary Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Subsidiary Guarantor or its property, an assignment for the benefit of
creditors or any marshalling of such Subsidiary Guarantor's assets and
liabilities, the holders of Senior Debt will be entitled to receive payment in
full of all Obligations due in respect of such Senior Debt (including interest
after the commencement of any such proceeding at the rate specified in the
applicable Senior Debt, whether or not such interest is in an allowed claim
under applicable law) before the Holders of Notes will be entitled to receive
any payment under the Subsidiary Guarantee of such Subsidiary Guarantor, and
until all Obligations with respect to Senior Debt of any are paid in full, any
distribution under the Subsidiary Guarantees to which the Holders of Notes
would be entitled shall be made by such Subsidiary Guarantor to the holders of
Senior Debt (except that Holders of Notes may receive Permitted Junior
Securities and payments made from the trust created pursuant to Article 8
hereof).
Section 12.03. Default on Designated Senior Debt.
No Subsidiary Guarantor may make any payment upon or in respect of
such Subsidiary Guarantee (except that Holders of Notes may receive Permitted
Junior Securities and payments made from the defeasance trust created pursuant
to Article 8 hereof) if:
(a) a default in the payment of the principal of, premium, if any, or
interest on Designated Senior Debt occurs and is continuing
beyond any applicable period of grace, if any; or
(b) any other default occurs and is continuing with respect to any
Designated Senior Debt that permits holders of such Designated
Senior Debt as to which such default relates to accelerate its
maturity and the Trustee receives a written notice of such
default (a "Payment Blockage Notice") from the Company, a
Subsidiary Guarantor or the holders of any Designated Senior Debt
(or their representative).
Payments on the Subsidiary Guarantees 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 case of a nonpayment default, 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 any Designated Senior Debt has been accelerated. No new period of payment
blockage may be commenced unless and until 360 days have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such default shall have been cured or waived for
a period of not less than 90 days.
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Section 12.04 Acceleration of Securities.
[Intentionally omitted.]
Section 12.05. When Distribution Must Be Paid Over.
In the event that the Trustee receives any payment of any Obligations
with respect to a Subsidiary Guarantor at a time when the Trustee has actual
knowledge that such payment is prohibited by Section 12.02 or 12.03 hereof,
such payment shall be held by the Trustee, for the benefit of, and shall be
paid forthwith over and delivered, upon written request to, the holders of
Senior Debt (or their representatives), as their respective interests may
appear, under the indenture or other agreement (if any) pursuant to which such
Senior Debt may have been issued for application to the payment of all
Obligations with respect to such Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms.
In the event that any Holder receives any payment of any Obligations
of a Subsidiary Guarantor at a time when such payment is prohibited by Section
12.02 or 12.03 hereof, such payment shall be held by such Holder in trust for
the benefit of, and shall be paid forthwith over and delivered, upon written
request to, the holders of Senior Debt (or their representative) under the
indenture or other agreement (if any) pursuant to which such Senior Debt may
have been issued for application to the payment of all Obligations with respect
to such Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 12, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the
Subsidiary Guarantors or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 12, except if such
payment is made as a result of the willful misconduct or gross negligence of
the Trustee.
Section 12.06. Notice By Subsidiary Guarantor.
Each Subsidiary Guarantor shall promptly notify the Trustee and the
Paying Agent of any facts known to such Subsidiary Guarantor that would cause a
payment of any Obligations to violate this Article 12, but failure to give such
notice shall not affect the subordination of the Subsidiary Guarantees to the
Senior Debt as provided in this Article 12.
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Section 12.07. Subrogation.
After all Senior Debt is paid in full and until the Subsidiary
Guarantees are paid in full, Holders shall be subrogated (equally and ratably
with all other Pari Passu Indebtedness) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 12 to holders of Senior
Debt that otherwise would have been made to Holders is not, as between the
Subsidiary Guarantors and Holders, a payment by the Subsidiary Guarantors on
the Senior Debt.
Section 12.08. Relative Rights.
This Article 12 defines the relative rights of the Holders and holders
of Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Subsidiary Guarantors and the Holders,
the obligation of the Subsidiary Guarantors, which is absolute
and unconditional, to pay principal of, premium, if any, and
interest on the Notes in accordance with the terms of the
Subsidiary Guarantees;
(ii) affect the relative rights of Holders and creditors of the
Subsidiary Guarantors other than their rights in relation to
holders of Senior Debt; or
(iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or an Event of Default, subject to the
rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders.
If any Subsidiary Guarantor fails because of this Article 12 to pay
its Obligations in accordance with its Subsidiary Guarantee on the due date,
the failure is nevertheless a Default or an Event of Default.
Section 12.09. Subordination May Not Be Impaired by Subsidiary
Guarantor.
No right of any holder of Senior Debt to enforce the subordination of
the Subsidiary Guarantees shall be prejudiced or impaired by any act or failure
to act by the Subsidiary Guarantors or any Holder or by the failure of the
Subsidiary Guarantors or any Holder to comply with this Indenture.
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Section 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
representative.
Upon any payment or distribution of assets of a Subsidiary Guarantor
referred to in this Article 12, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 12.
Section 12.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 12 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Subsidiary Guarantees, unless the Trustee shall have
received at its Corporate Trust Office at least two Business Days prior to the
date of such payment written notice that the payment of any Obligations with
respect to the Subsidiary Guarantees would violate this Article 12. Only the
Subsidiary Guarantors or a representative of the holders of Senior Debt may
give the notice. Nothing in this Article 12 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
Section 12.12 Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 12, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, a representative of Designated Senior Debt is hereby authorized to
file an appropriate claim for and on behalf of the Holders of the Notes.
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Section 12.13. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act, in good faith, by any such
holder.
(b) Without in any way limiting the generality of paragraph (a) of
this Section, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders to the holders of Senior Debt, do any one or more of
the following: (1) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, any Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(2) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (3) release any Person liable in
any manner for the collection of Senior Debt; and (4) exercise or refrain from
exercising any rights against any Subsidiary Guarantor and any other Person.
Section 12.14. Certain Definitions.
For purposes of this Section 12, the terms "distribution" and
"payment" include payments, distributions and other transfers of assets by or
on behalf of any Subsidiary Guarantor (including redemptions, repurchases or
other acquisitions of the Notes) from any source, of any kind or character,
whether direct or indirect, by set-off or otherwise, whether in cash, property
or securities.
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01 Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and will cease to be of further
effect as to all Notes issued hereunder, when either:
(a) all such Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and Notes
for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or
(b) (i) all such Notes not theretofore delivered to such Trustee for
cancellation have become due and payable by reason of the making of a
notice of
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redemption or otherwise or will become due and payable within one year and
the Company or a Subsidiary Guarantor, has irrevocably deposited or caused
to be deposited with such Trustee as trust funds in trust an amount of
money sufficient to pay and discharge the entire Indebtedness on such Notes
not theretofore delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of maturity or
redemption;
(ii) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the date of
such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under,
any other instrument to which the Company or a Subsidiary Guarantor is a
party or by which the Company or a Subsidiary Guarantor, is bound;
(iii) the Company or a Subsidiary Guarantor has paid or caused to
be paid all sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of such Notes at maturity or the redemption date, as the case may
be.
In addition, the Company must deliver an Officer's Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Section 13.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 4.03
hereof, all money deposited with the Trustee pursuant to Section 13.01 hereof
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to Persons entitled thereto, of the principal (and premium, if any)
and interest for whose payment such money has been deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 13.01 hereof 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 Notes shall
be revived and reinstated as though such deposit had occurred pursuant to
Section 13.01 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its Obligations, the
84
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.
ARTICLE 14
MISCELLANEOUS
Section 14.01 Conflict of any Provision of Indenture With TIA.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control.
Section 14.02 Notices.
Any notice or communication by the Company, any Subsidiary Guarantor
or the Trustee to the others is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery,
to the others' address:
If to the Company or any Subsidiary Guarantor:
Xxxxx Xxxxx Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: (212) -
If to the Trustee:
State Street Bank and Trust Company of Connecticut, X.X.
Xxxxxxx Square
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
Facsimile: (860) -
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered
85
back, if telexed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders of Notes with Other Holders of
Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 1.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 1.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 14.05 Legal Holidays.
In any case where any interest payment date, any date established for
payment of defaulted interest pursuant to Section 2.12 hereof, or any maturity
date with respect to any
86
Note shall not be a Business Day, then (nothwithstanding any other provisions
of this Indenture, the Notes or any Subsidiary Guarantee) payment of interest
or principal (and premium, if any) need not be made on such date but may be
made on the next succeeding Business Day.
Section 14.06 No Personal Liability of Directors, Officers, Employees
and Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Notes, the
Subsidiary Guarantees or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each holder of Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Subsidiary Guarantees. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such a waiver is against public policy.
Section 14.07 Governing Law.
THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF.
Section 14.08 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 14.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not. All
covenants and agreements in this Indenture by the Trustee shall bind its
respective successors and assigns, whether so expressed or not.
Section 14.10 Severability.
In case any provision in this Indenture or in the Notes or Subsidiary
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
87
Section 14.11 Counterpart Originals.
The parties may sign any number of counterpart copies of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 14.12 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
88
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed in New York, New York as of the day and year first above
written.
Dated: February , 1998 XXXXX XXXXX INC.
By:
-------------------------------
Name:
Title:
Dated: February , 1998 XXXXX XXXXX
By: XXXXX XXXXX INC., a general
partner
By:
-------------------------------
Name:
Title:
By: DRI I INC., a general partner
By:
-------------------------------
Dated: February , 1998 DRI I Inc.
By:
-------------------------------
Name:
Title:
Dated: February , 0000 XXXXX XXXXXX XXXX AND TRUST COMPANY
OF CONNECTICUT, N.A.
By:
-------------------------------
Name:
Title:
89
Exhibit A
(Face of Note)
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depository Trust Company shall act as the Depositary until a
successor shall be appointed by the Company. Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), 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 may be requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein].(1)
% Senior Subordinated Notes due 2008
No. Cusip No:
XXXXX XXXXX INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of
$_________________ (_______________________________ Dollars) on , 2008.
Interest Payment Dates:
Record Dates:
--------------
(1) This paragraph should be included only if the Note is issued in global
form.
A-1
XXXXX XXXXX INC.
By:
-------------------------------
Name:
Title:
A-2
This is one of the % Senior Subordinated Notes due 2008 referred
to in the within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT N.A.,
as Trustee
By:
-------------------------------
Authorized Signature
A-3
(Back of Note)
% Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below.
1. Interest. Xxxxx Xxxxx Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at % per annum
from , 1998 until , 2008. The Company shall pay interest semi-annually in
arrears on and of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "Interest Payment Date"). Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of original issuance; provided that
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be , 1998. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate equal to
1% per annum in excess of the per annum rate on the Notes then in effect; it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on and next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, if any, and interest at the office or agency of the Company
maintained for such purpose within the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that
all payments with respect to (i) Notes the holders of which have given wire
transfer instructions to the Company will be required to be made by wire
transfer of immediately available funds to the accounts specified by the
holders thereof, and (ii) Notes represented by one or more permanent Global
Notes will be paid by wire transfer of immediately available funds to the
account of the Depository Trust Company or any successor thereto. Such payment
shall be in such coin or currency of the United Sates of America as at the time
of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, State Street Bank and Trust
Company of Connecticut, N.A., the Trustee under the Indenture, will act as
Paying Agent and
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Registrar. The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of , 1998 (the "Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are general unsecured obligations of the Company limited to
$80,000,000 in aggregate principal amount.
5. Optional Redemption. Except as set forth in the next paragraph, the
Notes will not be redeemable at the Company's option prior to 2003.
Thereafter, the Notes will be subject to redemption at any time at the option
of the Company, in whole or in part, upon not less than 30 nor more than 60
days' written notice, at the redemption prices (expressed as percentages of
principal amount) set forth below, together with accrued and unpaid interest
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on of each of the years indicated below:
Redemption
Year Price
---- -----
2003................................................... . %
2004................................................... . %
2005................................................... . %
2006 and thereafter.................................... 100.000%
Notwithstanding the foregoing, on or prior to , 2001, the Company may,
at its option, redeem up to 35% of the original aggregate principal amount of
Notes at a redemption price equal to . % of the principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the redemption date, with
the net proceeds of one or more Qualified Offerings of the Company; provided
that at least 65% of the original aggregate principal amount of Notes remains
outstanding immediately after the occurrence of such redemption; and provided,
further, that any such redemption shall occur within 90 days of the date of the
closing of such Qualified Offering.
6. Mandatory Redemption. Other than as set forth in paragraph 8, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
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7. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes may be redeemed
in part, provided that no Notes shall be redeemed in a principal amount that is
less than $1,000. On and after the redemption date, interest ceases to accrue
on Notes or portions thereof called for redemption.
8. Repurchase at Option of Holders. (a) Upon the occurrence of a
Change of Control, the Company shall make an offer (a "Change of Control
Offer") to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of the Notes at a price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase (the "Change of Control Payment"). Within 15 days following any
Change of Control, the Company shall (or shall cause the Trustee to) mail a
notice to each Holder of Notes issued under the Indenture, with a copy to the
Trustee, containing the information set forth in Section 4.09 of the Indenture.
Holders of Notes that are subject to an offer to purchase may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse side of this Note.
(b) Within 270 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any such Subsidiary shall apply such Net Proceeds at
its option (or to the extent the Company is required to apply such Net Proceeds
pursuant to the terms of the New Credit Agreement), to (a) repay Senior Debt
(and to correspondingly reduce commitments with respect thereto in the case of
revolving borrowings) or (b) repay Pari Passu Indebtedness of the Company or
any Subsidiary Guarantor (and to correspondingly reduce commitments with
respect thereto), provided that if the Company or any Subsidiary Guarantor
shall so repay Pari Passu Indebtedness, it will equally and ratably reduce
Indebtedness under the Notes if the Notes are then redeemable, or if the Notes
may not then be redeemed, the Company shall make an offer in accordance with
the procedures set forth in Section 3.10 of the Indenture to all Holders of
Notes to purchase at a price in cash equal to 100% of the principal amount
thereof (plus accrued and unpaid interest thereon to the date of repurchase)
the amount of Notes that would otherwise be redeemed or (c) an investment in
property, the making of a capital expenditure or the acquisition of other
long-term assets, in each case, of or from an entity that is engaged in a
Permitted Business, and in accordance with the terms of the Indenture. Pending
the final application of any such Net Proceeds, the Company may temporarily
reduce Designated Senior Debt or otherwise invest such Net Proceeds in any
manner that is not prohibited by the Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the preceding sentence of
this paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be
required to make an Asset Sale Offer to purchase the maximum principal amount
of Notes that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon to the date of purchase, in accordance with the
procedures set forth in Section 3.10 of the Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess
A-6
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased in accordance with the procedures set forth in
Section 3.02 of the Indenture. Upon completion of such Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture. The
Company need not exchange or register the transfer of any Note or portion of a
Note selected for redemption. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Subordination. Each Holder by accepting a Note agrees that the
payment of principal of, premium, if any, and interest on each Note is
subordinated in right of payment, to the extent and in the manner provided in
Article 10 of the Indenture, to the prior payment in full in cash of all Senior
Debt (whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed; provided that such creation, incurrence,
assumption or guarantee is in accordance with the provisions set forth in the
Indenture), and this subordination provision is for the benefit of the holders
of Senior Debt.
12. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Notes and the Subsidiary Guarantees issued hereunder may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or a tender
offer or exchange offer for, the Notes), and, subject to the terms of the
Indenture, the Notes and the Subsidiary Guarantees, any existing default or
compliance with any provision of the Indenture, the Notes or the Subsidiary
Guarantees may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for the
Notes). Without the consent of any Holder of Notes, the Company, a Subsidiary
Guarantor (with respect to a Subsidiary Guarantee or the Indenture to which it
is a party) and the Trustee may amend or supplement the Indenture, or Notes or
the Subsidiary Guarantees to cure any ambiguity, defect or inconsistency; to
provide for uncertificated Notes in addition to or in place of certificated
Notes; to comply with Article 5 of the Indenture; to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not,
A-7
in the opinion of counsel, adversely affect the legal rights hereunder of any
such Holder; to comply with requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act;
to allow any Subsidiary Guarantor to guarantee the Notes; or to provide for the
appointment of a successor trustee in compliance with the requirements of
Section 7.08 of the Indenture.
13. Defaults and Remedies. Each of the following constitutes an "Event
of Default": (a) default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by the subordination provisions of this
Indenture); (b) default in payment when due of the principal of or premium (if
any) on the Notes (whether or not prohibited by the subordination provisions of
the Indenture); (c) failure by the Company to comply with the provisions of
Sections 4.09, 4.10, 4.11, 4.12 and 5.01 of the Indenture; (d) failure by the
Company for 60 days after notice to comply with any of its other agreements in
the Indenture or the Notes; (e) 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 now exists or is
created after the Closing Date, which default (i) is caused by a failure to pay
principal of or premium (if any) or interest on such Indebtedness at its final
stated maturity prior to the expiration of any grace period provided in such
Indebtedness (a "Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $5.0 million or more; (f)
failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of $5.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days; (g) failure by any Subsidiary Guarantor to
perform any covenant set forth in its Subsidiary Guarantee, or the repudiation
by any Subsidiary Guarantor of its obligations under its Subsidiary Guarantee
or the unenforceability of any Subsidiary Guarantee against a Subsidiary
Guarantor for any reason, unless, in each such case, such Subsidiary Guarantor
and its Subsidiaries have no Indebtedness outstanding at such time or at any
time thereafter; and (h) certain events of bankruptcy with respect to the
Company or any of its Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately; provided, that so long
as any Indebtedness permitted to be incurred pursuant to the New Credit
Agreement shall be outstanding, such acceleration shall not be effective until
the earlier of (a) any acceleration of any such Indebtedness under the New
Credit Agreement and (b) five business days after receipt by the Company of
written notice of such acceleration. Notwithstanding the foregoing, in the case
of an Event of Default specified in clause (h) of (i) of Section 6.01 hereof
with respect to the Company, any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
all
A-8
outstanding Notes will become due and payable without further action or notice.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in this Indenture. In the event of a declaration of acceleration of
the Notes because an Event of Default has occurred and is continuing as a
result of the acceleration of any Indebtedness described in clause (e) of the
preceding paragraph, the declaration of acceleration of the Notes shall be
automatically annulled if the holders of any Indebtedness described in clause
(e) have rescinded the declaration of acceleration in respect of such
Indebtedness within 30 days of the date of such declaration and if (i) the
annulment of the acceleration of the Notes would not conflict with any judgment
or decree of a court of competent jurisdiction, and (ii) all existing Events of
Default, except nonpayment of principal or interest on the Notes that became
due solely because of the acceleration of the Notes, have been cured or waived.
Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Holders of a majority in aggregate principal amount of
the Notes then outstanding, by notice to the Trustee, may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and
its consequences under this Indenture, except a continuing Default or Event of
Default in the payment of interest or premium (if any) on, or principal of, the
Notes.
14. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company, and may otherwise deal with the Company, as if it
were not the Trustee.
15. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Notes, the Subsidiary Guarantees or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability.
16. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minor Act).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such
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numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
19. Governing Law. The internal law of the State of New York shall
govern and be used to construe the terms of this Note.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Xxxxx Xxxxx Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
---------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
-------------------------------------------------------------------------------
Date:
------------------------
Your Signature:
----------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.09 or 4.10 of the Indenture, check the box below:
[ ] Section 4.09 [ ] Section 4.10
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.09 or Section 4.10 of the Indenture, state the
amount you elect to have purchased:
$
------------
Date: Your Signature:
------------------------ -------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
-----------------
Signature Guarantee.
A-12
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(2)
The following exchanges of a part of this Global Note for Notes in
definitive form have been made:
Principal Amount
of this Global
Amount of decrease Amount of increase Note following Signature of
Date in Principal Amount in Principal Amount such decrease authorized
of Exchange of this Global Note of this Global Note (or increase) officer of Trustee
----------- ------------------- ------------------- ------------- ------------------
--------
(2) This should be included only if the Note is issued in global form.
A-13
Exhibit B
SUBSIDIARY GUARANTEE
Subject to Section 11.05 of the Indenture, each Subsidiary Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Notes and the Obligations of the Company under the Notes or
under the Indenture, that: (a) the principal of, premium, if any, and interest
on the Notes will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration, redemption or otherwise,
and interest on overdue principal, premium, if any, and (to the extent
permitted by law) interest on any interest, on the Notes and all other payment
Obligations of the Company to the Holders or the Trustee under the Indenture or
under the Notes will be promptly paid in full and performed, all in accordance
with the terms thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other payment Obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration, redemption or otherwise. Failing payment when so due
of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Subsidiary Guarantors will be jointly and severally obligated to
pay the same immediately.
The obligations of the Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture are incorporated herein by reference. This
Subsidiary Guarantee is subject to release as and to the extent provided in
Section 11.04 of the Indenture.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
guarantee of payment and not a guarantee of collection.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right
B-1
to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Subsidiary Guarantee will not be
discharged except by complete performance of the Obligations contained in the
Notes and the Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability shall be
limited to the lesser of (i) the aggregate amount of the Obligations of the
Company under the Notes and the Indenture and (ii) the amount, if any, which
would not have (A) rendered such Subsidiary Guarantor "insolvent" (as such term
is defined in the Bankruptcy Law and in the Debtor and Creditor Law of the
State of New York) or (B) left such Subsidiary Guarantor with unreasonably
small capital at the time its Subsidiary Guarantee of the Notes was entered
into: provided that, it will be a presumption in any lawsuit or other
proceeding in which a Subsidiary Guarantor is a party that the amount
guaranteed pursuant to the Subsidiary Guarantee is the amount set forth in
clause (i) above unless any creditor, or representative of creditors of such
Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of the Subsidiary Guarantor is limited to the amount set forth in
clause (ii) above. The Indenture provides that, in making any determination as
to the solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary Guarantors
to contribution from other Subsidiary Guarantors and any other rights such
Subsidiary Guarantors may have, contractual or otherwise, shall be taken in
account.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
B-2
Dated as of February , 1998 DRI I INC.
By:
-------------------------------
Name:
Title:
Dated as of February , 1998 XXXXX XXXXX
By: DRI I INC., General Partner
By:
-------------------------------
Name:
Title:
By: XXXXX XXXXX INC., General
Partner
By:
-------------------------------
Name:
Title:
B-3
Exhibit C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
__________, _____ among Xxxxx Xxxxx Inc., a Delaware corporation (the
"Company"), [Subsidiary Guarantor], a subsidiary of the Company (the "New
Susidiary Guarantor"), and State Street Bank and Trust Company of Connecticut,
N.A., as trustee under the indenture referred to below (the "Trustee").
Capitalized terms used herein and not defined herein shall have the meaning
ascribed to them in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture, dated as of February , 1998 (the "Indenture"), providing
for the issuance of an aggregate principal amount of $80,000,000 of % Senior
Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Company may or must cause certain of its Subsidiaries to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Subsidiaries shall
unconditionally guarantee all of the Company's Obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth
therein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company, the New Subsidiary Guarantor and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement To Guarantee. The New Subsidiary Guarantor hereby agrees,
jointly and severally with all other Subsidiary Guarantors, to guarantee the
Company's Obligations under the Notes and the Indenture on the terms and
subject to the conditions set forth in Article 11 of the Indenture and to be
bound by all other applicable provisions of the Indenture.
C-1
3. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Subsidiary
Guarantor, as such, shall have any liability for any obligations of the Company
or any Subsidiary Guarantor under the Notes, any Subsidiary Guarantee, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives a releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Subsidiary
Guarantees.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the correctness of the recitals
of fact contained herein, all of which recitals are made solely by the New
Subsidiary Guarantor.
C-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: XXXXX XXXXX INC.
-----------------------
By:
-----------------------------
Name:
Title:
Dated: [Name of New Subsidiary Guarantor]
-----------------------
By:
-----------------------------
Name:
Title:
Dated: STATE STREET BANK AND TRUST
----------------------- COMPANY OF CONNECTICUT, N.A.,
as Trustee
By:
-----------------------------
Name:
Title:
C-3
Exhibit D
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Each Subsidiary Guarantor (as defined in the Indenture) has jointly
and severally unconditionally guaranteed (a) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at stated
maturity, by acceleration, call for redemption or otherwise, (b) the due and
punctual payment of interest on the overdue principal and premium of, and
interest, to the extent lawful, on the Notes and (c) that in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, the same will be promptly paid in full when due in accordance with
the terms of the extension of renewal, whether at stated maturity, by
acceleration or otherwise.
Notwithstanding the foregoing, in the event that the Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to such amount as will not, after giving effect thereto, and to all
other liabilities of the Subsidiary Guarantor, result in such amount
constituting a fraudulent transfer or conveyance.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual or facsimile signature of one of its authorized
officers.
Dated: ____________, _____ [Subsidiary Guarantor]
By:
-----------------------------
Name:
Title:
D-1
