================================================================================
UNITED INDUSTRIES CORPORATION,
as Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
$150,000,000
9-7/8% Senior Subordinated Notes due 2009
================================================================================
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)................................. 7.10
(a)(2)................................. 7.10
(a)(3)................................. N.A.
(a)(4)................................. N.A.
(b).................................... 7.08; 7.10; 12.02
(b)(1)................................. 7.10
(b)(9)................................. 7.10
(c).................................... N.A.
311(a).................................... 7.11
(b).................................... 7.11
(c).................................... N.A.
312(a).................................... 2.05
(b).................................... 12.03
(c).................................... 12.03
313(a).................................... 7.06
(b)(1)................................. 7.06
(b)(2)................................. 7.06
(c).................................... 12.02
(d).................................... 7.06
314(a).................................... 4.02; 4.04; 12.02
(b).................................... N.A.
(c)(1)................................. 12.04; 12.05
(c)(2)................................. 12.04; 12.05
(c)(3)................................. N.A.
(d).................................... N.A.
(e).................................... 12.05
(f).................................... N.A.
315(a).................................... 7.01; 7.02
(b).................................... 7.05; 12.02
(c).................................... 7.01
(d).................................... 6.05; 7.01; 7.02
(e).................................... 6.11
316(a) (last sentence).................... 2.10
(a)(1)(A).............................. 6.05
(a)(1)(B).............................. 6.04
(a)(2)................................. 8.02
(b).................................... 6.07
(c).................................... 8.04
317(a)(1)................................. 6.08
(a)(2)................................. 6.09
(b).................................... 7.12
318(a).................................... 12.01
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions..................................1
Section 1.02. Other Definitions...........................34
Section 1.03. Incorporation by Reference of Trust
Indenture Act.............................35
Section 1.04. Rules of Construction.......................36
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes.............................37
Section 2.02. Form and Dating.............................37
Section 2.03. Execution and Authentication................38
Section 2.04. Registrar and Paying Agent..................39
Section 2.05. Paying Agent to Hold Money in Trust.........40
Section 2.06. Noteholder Lists............................40
Section 2.07. Transfer and Exchange.......................41
Section 2.08. Replacement Notes...........................42
Section 2.09. Outstanding Notes...........................42
Section 2.10. Treasury Notes..............................43
Section 2.11. Temporary Notes.............................43
Section 2.12. Cancellation................................44
Section 2.13. Defaulted Interest..........................44
Section 2.14. CUSIP Number................................45
Section 2.15. Deposit of Moneys...........................45
Section 2.16. Book-Entry Provisions for Global Notes......46
Section 2.17. Special Transfer Provisions.................49
Section 2.18. Computation of Interest.....................52
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee..........................52
Section 3.02. Selection by Trustee of Notes to Be
Redeemed..................................52
Section 3.03. Notice of Redemption........................53
Section 3.04. Effect of Notice of Redemption..............54
Section 3.05. Deposit of Redemption Price.................55
Section 3.06. Notes Redeemed in Part......................55
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes............................56
Section 4.02. SEC Reports.................................56
Section 4.03. Waiver of Stay, Extension or Usury Laws.....58
Section 4.04. Compliance Certificate......................58
Section 4.05. Taxes.......................................60
Section 4.06. Limitation on Additional Indebtedness.......60
Section 4.07. Limitation on Preferred Stock of
Restricted Subsidiaries...................61
Section 4.08. Limitation on Capital Stock of
Subsidiaries..............................61
Section 4.09. Limitation on Restricted Payments...........62
Section 4.10. Limitation on Certain Asset Sales...........65
Section 4.11. Limitation on Transactions with
Affiliates................................69
Section 4.12. Limitations on Liens........................70
Section 4.13. Limitations on Investments..................71
Section 4.14. Limitation on Creation of Subsidiaries......71
Section 4.15. Limitation on Other Senior Subordinated
Debt......................................71
Section 4.16. Limitation on Sale and Lease-Back
Transactions..............................72
Section 4.17. Payments for Consent........................72
Section 4.18. Legal Existence.............................73
Section 4.19. Change of Control...........................73
Section 4.20. Maintenance of Office or Agency.............76
Section 4.21. Maintenance of Properties; Insurance;
Books and Records; Compliance with Law....77
Section 4.22. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries..............................78
Section 4.23. Further Assurance to the Trustee............79
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets............................79
Section 5.02. Successor Person Substituted................81
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default...........................81
Section 6.02. Acceleration................................84
Section 6.03. Other Remedies..............................84
Section 6.04. Waiver of Past Defaults and Events of
Default...................................85
Section 6.05. Control by Majority.........................85
Section 6.06. Limitation on Suits.........................86
Section 6.07. Rights of Holders to Receive Payment........87
Section 6.08. Collection Suit by Trustee..................87
Section 6.09. Trustee May File Proofs of Claim............87
Section 6.10. Priorities..................................88
Section 6.11. Undertaking for Costs.......................89
Section 6.12. Restoration of Rights and Remedies..........89
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee...........................90
Section 7.02. Rights of Trustee...........................92
Section 7.03. Individual Rights of Trustee................93
Section 7.04. Trustee's Disclaimer........................93
Section 7.05. Notice of Defaults..........................93
Section 7.06. Reports by Trustee to Holders...............94
Section 7.07. Compensation and Indemnity..................94
Section 7.08. Replacement of Trustee......................96
Section 7.09. Successor Trustee by Consolidation,
Merger, Etc...............................97
Section 7.10. Eligibility; Disqualification...............97
Section 7.11. Preferential Collection of Claims
Against Company...........................98
Section 7.12. Paying Agents...............................98
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders..................99
Section 8.02. With Consent of Holders....................100
Section 8.03. Compliance with Trust Indenture Act........102
Section 8.04. Revocation and Effect of Consents..........102
Section 8.05. Notation on or Exchange of Notes...........103
Section 8.06. Trustee to Sign Amendments, etc............103
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.....................104
Section 9.02. Legal Defeasance...........................105
Section 9.03. Covenant Defeasance........................105
Section 9.04. Conditions to Defeasance or Covenant
Defeasance...............................106
Section 9.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.................109
Section 9.06. Reinstatement..............................109
Section 9.07. Moneys Held by Paying Agent................110
Section 9.08. Moneys Held by Trustee.....................110
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee..................................111
Section 10.02. Execution and Delivery of Guarantees.......112
Section 10.03. Limitation of Guarantee....................113
Section 10.04. Release of Guarantor.......................113
Section 10.05. Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness............114
Section 10.06. Payment Over of Proceeds upon
Dissolution, etc., of a Guarantor........115
Section 10.07. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in
Default..................................117
Section 10.08. Subrogation to Rights of Holders of
Guarantor Senior Indebtedness............120
Section 10.09. Guarantee Subordination Provisions
Solely To Define Relative Rights.........120
Section 10.10. Application of Certain Article 11
Provisions...............................121
ARTICLE 11
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness...122
Section 11.02. Payment Over of Proceeds upon
Dissolution, etc.........................123
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default..................124
Section 11.04. Trustee's Relation to Senior
Indebtedness.............................127
Section 11.05. Subrogation to Rights of Holders of
Senior Indebtedness......................128
Section 11.06. Provisions Solely To Define Relative
Rights...................................128
Section 11.07. Trustee To Effectuate Subordination........129
Section 11.08. No Waiver of Subordination Provisions......130
Section 11.09. Notice to Trustee..........................131
Section 11.10. Reliance on Judicial Order or
Certificate of Liquidating Agent.........132
Section 11.11. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of
Trustee's Rights.........................133
Section 11.12. Article Applicable to Paying Agents........133
Section 11.13. No Suspension of Remedies..................133
SECTION 11.14. Authorization to Effect Subordination......134
SECTION 11.15. Amendments.................................134
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls...............134
Section 12.02. Notices....................................135
Section 12.03. Communications by Holders with Other
Holders..................................136
Section 12.04. Certificate and Opinion as to Conditions
Precedent................................136
Section 12.05. Statements Required in Certificate and
Opinion..................................137
Section 12.06. Rules by Trustee and Agents................138
Section 12.07. Business Days; Legal Holidays..............138
Section 12.08. Governing Law..............................138
Section 12.09. No Adverse Interpretation of Other
Agreements...............................139
Section 12.10. No Recourse Against Others.................139
Section 12.11. Successors.................................140
Section 12.12. Multiple Counterparts......................140
Section 12.13. Table of Contents, Headings, etc...........140
Section 12.14. Separability...............................140
EXHIBITS
Exhibit A Form of Note.............................. A-1
Exhibit B Form of Legend and Assignment for
144A Note............................... B-1
Exhibit C Form of Legend and Assignment for
Regulation S Note....................... C-1
Exhibit D Form of Legend for Global Note............ D-1
Exhibit E Form of Certificate to Be Delivered
in Connection with Transfers to
Non-QIB Accredited Investors............ E-1
Exhibit F Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S................ F-1
Exhibit G Form of Guarantee......................... G-1
INDENTURE, dated as of March 24, 1999, between UNITED INDUSTRIES
CORPORATION, a Delaware corporation (the "Issuer"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts Trust Company, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Issuer's 9-7/8% Senior
Subordinated Notes due
2009 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Accrued Bankruptcy Interest" means, with respect to any Indebtedness
of any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any bankruptcy, reorganization, insolvency, receivership or
similar proceeding, whether voluntary or involuntary, against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such proceeding.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of the outstanding
equity interests on, or assets from, such Person.
"Additional Interest" means additional interest on the Notes which the
Issuer agrees to pay to the Holders pursuant to Section 4 of the Registration
Rights Agreement.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities), but excluding liabilities under the Guarantee, of such Guarantor
at such date and (y) the present fair salable value of the assets of such
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities and after giving effect to any collection
from any Subsidiary of such Guarantor in respect of the obligations of such
Subsidiary under the Guarantee), excluding Indebtedness in respect of the
Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means the Registrar, any Paying Agent, or
agent for service of notices and demands.
"Asset Acquisition" means (a) an Investment by the Issuer or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged with or into the Issuer or any
Restricted Subsidiary or (b) the acquisition by the Issuer or any Restricted
Subsidiary of the assets of any Person (other than a Restricted Subsidiary)
which constitute all or substantially all of the assets of such Person or
comprise any division or line of business of such Person or any other properties
or assets of such Person other than in the ordinary course of business.
"Asset Drop-Down" means the contribution of all or substantially all
of the Issuer's assets to a newly-created Wholly-Owned Subsidiary, which would
also assume all or substantially all of the Issuer's liabilities.
"Asset Sale" means the sale, transfer or other disposition (including
any Sale and Lease-Back Transaction) (other than to the Issuer or any of its
Restricted Subsidiaries) in any single transaction or series of related
transactions having a fair market value in excess of $1,500,000 of (a) any
Capital Stock of or other equity interest in any Restricted Subsidiary of the
Issuer or (b) any other property or assets of the Issuer or of any Restricted
Subsidiary thereof; provided that Asset Sales shall not include (i) sales,
leases, conveyances, transfers or other dispositions to the Issuer or to a
Restricted Subsidiary or to any other Person if after giving effect to such
sale, lease, conveyance, transfer or other disposition such other Person becomes
a Restricted Subsidiary; (ii) the contribution of any assets to a joint venture,
partnership or other Person (which may be a Subsidiary) to the extent such
contribution constitutes a Permitted Investment (other than by operation of
clause (iv) of the definition thereof); (iii) the sale, transfer or other
disposition of all or substantially all of the assets of the Issuer or any
Guarantor as permitted under Section 5.01, including without limitation, an
Asset Drop-Down; (iv) the sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof; (v) the factoring of
accounts receivable arising in the ordinary course of business pursuant to
arrangements customary in the industry; (vi) the licensing of intellectual
property; (vii) disposals or replacements of obsolete equipment in the ordinary
course of business; (viii) leases or subleases to third persons not interfering
in any material respect with the business of the Issuer or any of its Restricted
Subsidiaries; (ix) a disposition of Temporary Cash Investments or goods held for
sale in the ordinary course of business consistent with past practices of the
Issuer; (x) a disposition that constitutes a Change of Control; and (xi) any
foreclosures on assets.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Issuer or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage commissions, underwriting and other fees
(including legal and accounting fees) and expenses (including relocation
expenses) related to such Asset Sale, (c) any consideration for an Asset Sale
(which would otherwise constitute Asset Sale Proceeds) that is required to be
held in escrow pending determination of whether a purchase price adjustment will
be made, but amounts under this clause (c) will become Asset Sale Proceeds at
such time and to the extent such amounts are released to the Issuer or a
Restricted Subsidiary, (d) repayment of Indebtedness that either (i) is secured
by a Lien on the property or assets sold or (ii) is required to be repaid in
connection with such Asset Sale (in order to obtain a consent required in
connection therewith), (e) provision for minority interest holders in any
Restricted Subsidiary as a result of such Asset Sale and (f) deduction of
appropriate amounts to be provided by the Issuer or a Restricted Subsidiary as a
reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or disposed of in such Asset Sale and retained by the Issuer or a
Restricted Subsidiary after such Asset Sale, including, without limitation,
severance, healthcare, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale,
and (ii) promissory notes and other non-cash consideration received by the
Issuer or any Restricted Subsidiary from such Asset Sale or other disposition
upon the liquidation or conversion of such notes or non-cash consideration into
cash.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the greater of (i) the fair
value of the property subject to such arrangement (as determined by the Board of
Directors of the Issuer) and (ii) the present value of the total obligations
(discounted at the rate borne by the Notes, compounded annually) of the lessee
for rental payments during the remaining term of the lease included in such Sale
and Lease-Back Transaction (including any period for which such lease has been
extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clause (iii)(a) or (iii)(b) of Section 4.10(a) and
that have not previously been the basis for an Excess Proceeds Offer in
accordance with clause (iii)(c) of Section 4.10(a).
"Board of Directors" means (i) in the case of a Person that is a
corporation, the board of directors of such Person or any committee authorized
to act therefore, (ii) in the case of a Person that is a limited partnership,
the board of directors of its corporate general partner or any committee
authorized to act therefor (or, if the general partner is itself a limited
partnership, the board of directors of such general partner's corporate general
partner or any committee authorized to act therefor) and (iii) in the case of
any other Person, the board of directors, management committee or similar
governing body or any authorized committee thereof responsible for the
management of the business and affairs of such Person.
"Board Resolution" means a copy of a resolution certified pursuant to
an Officers' Certificate to have been duly adopted by the Board of Directors of
the Issuer or a Guarantor, as appropriate, and to be in full force and effect,
and delivered to the Trustee.
"Capital Stock" means, with respect to any Person any and all shares
or other equivalents (however designated and whether or not voting,) of capital
stock, partnership interests or any other participation, right or other interest
in the nature of an equity interest in such Person or any option, warrant or
other security convertible into or exercisable for any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Change of Control" means, at any time after the Issue Date, the
occurrence of one or more of the following events: (i) any Person (including a
Person's Affiliates and associates), other than a Permitted Holder, becomes the
beneficial owner (as defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of 50% or more of the total
voting power of the Common Stock of the Issuer, (ii) there shall be consummated
any consolidation or merger of the Issuer in which the Issuer is not the
continuing or surviving corporation or pursuant to which the Common Stock of the
Issuer would be converted into cash, securities or other property, other than a
merger or consolidation of the Issuer in which the beneficial owners of the
Common Stock of the Issuer outstanding immediately prior to the consolidation or
merger hold, directly or indirectly, at least a majority of the Common Stock of
the surviving corporation immediately after such consolidation or merger, or
(iii) during any period of two consecutive years commencing after the Issue
Date, individuals who at the beginning of such period constituted the Board of
Directors of the Issuer (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders of the
Issuer has been approved by a majority of the directors then still in office who
either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Issuer.
"Commodity Hedge Agreement" shall mean any option, hedge or other
similar agreement or arrangement designed to protect against fluctuations in
commodity or materials prices.
"Common Stock" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of EBITDA of such Person during the four full fiscal quarters
(the "Four Quarter Period") ending on or prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (the "Transaction Date") for which financial statements are available to
Consolidated Fixed Charges of such Person for the Four Quarter Period. In
addition to and without limitation of the foregoing, for purposes of this
definition, "EBITDA" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a pro forma basis for the period of such calculation to:
(1) the incurrence or repayment of any Indebtedness
of such Person or any of its Restricted
Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to
make such calculation and any incurrence or
repayment of other Indebtedness (and the
application of the proceeds thereof), other
than the incurrence or repayment of
Indebtedness in the ordinary course of business
for working capital purposes pursuant to
revolving credit facilities, occurring during
the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date,
as if such incurrence or repayment, as the case
may be (and the application of the proceeds
thereof), occurred on the first day of the Four
Quarter Period;
(2) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset
Acquisition giving rise to the need to make
such calculation as a result of such Person or
one of its Restricted Subsidiaries (including
any Person who becomes a Restricted Subsidiary
as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including
any EBITDA (provided that such EBITDA shall be
included only to the extent includable pursuant
to the definition of "Consolidated Net Income")
attributable to the assets which are the
subject of the Asset Acquisition during the
Four Quarter Period) occurring during the Four
Quarter Period or at any time subsequent to the
last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the
incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the
first day of the Four Quarter Period;
(3) with respect to any such Four Quarter Period commencing prior to
the Recapitalization, the Recapitalization, which shall be deemed
to have taken place on the first day of such Four Quarter Period;
and
(4) any asset sales or asset acquisitions
(including any EBITDA attributable to the
assets which are the subject of the asset
acquisition or asset sale during the Four
Quarter Period (provided that such EBITDA shall
be included only to the extent includable
pursuant to the definition of "Consolidated Net
Income")) that have been made by any Person
that has become a Restricted Subsidiary of the
Issuer or has been merged with or into the
Issuer or any Restricted Subsidiary of the
Issuer during the Four Quarter Period or at any
time subsequent to the last day of the Four
Quarter Period and on or prior to the
Transaction Date that would have constituted
Asset Sales or Asset Acquisitions had such
transactions occurred when such Person was a
Restricted Subsidiary of the Issuer or
subsequent to such Person's merger into the
Issuer, as if such asset sale or asset
acquisition (including the incurrence,
assumption or liability for any Indebtedness or
Acquired Indebtedness in connection therewith)
occurred on the first day of the Four Quarter
Period. If such Person or any of its
Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the
preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as
if such Person or any Restricted Subsidiary of
such Person had directly incurred or otherwise
assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes
of determining the denominator (but not the numerator) of this "Consolidated
Fixed Charge Coverage Ratio,"
(1) interest on outstanding Indebtedness determined
on a fluctuating basis as of the Transaction
Date and which will continue to be so
determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the
rate of interest on such Indebtedness in effect
on the Transaction Date; and
(2) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis,
to the extent such interest is covered by one
or more Interest Rate Agreements, shall be
deemed to accrue at the rate per annum
resulting after giving effect to the operation
of such agreements.
"Consolidated Fixed Charges" means, with respect to
any Person, for any period, the sum of
(1) Consolidated Interest Expense (excluding
amortization or write-off of debt issuance
costs relating to the Recapitalization and the
financing therefor or relating to retired or
existing Indebtedness and amortization or
write-off of customary debt issuance costs
relating to future Indebtedness incurred in the
ordinary course of business), plus
(2) without duplication, the product of (a) the
amount of all dividend payments on any series
of Preferred Stock of such Person or any
Restricted Subsidiary, determined on a
consolidated basis (other than dividends paid
in Capital Stock (other than Disqualified
Capital Stock)) paid, accrued or scheduled to
be paid or accrued during such period times (b)
a fraction, the numerator of which is one and
the denominator of which is one minus the then
current effective consolidated federal, state
and local tax rate of such Person, expressed as
a decimal.
"Consolidated Interest Expense" means, with respect to any Person, for
any period, the aggregate amount of interest which, in conformity with GAAP,
would be set forth opposite the caption "interest expense" or any like caption
on an income statement for such Person and its Restricted Subsidiaries on a
consolidated basis (including, but not limited to, imputed interest included in
Capitalized Lease Obligations, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with hedging obligations, amortization of
other financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount (other than any such discount arising from
the issuance of warrants to purchase Common Stock to purchasers of the Issuer's
debt securities simultaneously with the issuance thereof) or premium, if any,
and all other non-cash interest expense (other than interest amortized to cost
of sales)) plus, without duplication, all net capitalized interest for such
period and all interest incurred or paid under any guarantee of Indebtedness
(including a guarantee of principal, interest or any combination thereof) of any
Person, plus the amount of all dividends or distributions paid on Disqualified
Capital Stock (other than dividends paid or payable in shares of Capital Stock
of the Issuer), less the amortization of deferred financing costs.
"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, however, that (1) (a) the Net Income of any Person (the "other
Person") in which the Person in question or any of its Registered Subsidiaries
has less than a 100% interest (which interest does not cause the net income of
such other Person to be consolidated into the net income of the Person in
question in accordance with GAAP) and (2) Unrestricted Subsidiary shall be
included only to the extent of the amount of dividends or distributions paid to
the Person in question or the Restricted Subsidiary, (2) the Net Income of any
Restricted Subsidiary of the Person in question that is subject to any
restriction or limitation on the payment of dividends or the making of other
distributions (other than pursuant to the Notes or as permitted under Section
4.22) shall be excluded to the extent of such restriction or limitation, (3) (i)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition and (ii) any net gain (but not
loss) resulting from an Asset Sale by the Person in question or any of its
Restricted Subsidiaries other than in the ordinary course of business shall be
excluded, (4) extraordinary, unusual and non-recurring gains and losses
(including any related tax effects on the Issuer) shall be excluded, (5) income
or loss attributable to discontinued operations (including without limitation
operations disposed of during such period whether or not such operations were
classified as discontinued) shall be excluded, (6) to the extent not otherwise
excluded in accordance with GAAP, the Net Income of any Restricted Subsidiary in
an amount that corresponds to the percentage ownership interest in the income of
such Restricted Subsidiary not owned on the last day of such period, directly or
indirectly, by such Person shall be excluded, (7) dividends, distributions and
any other payments constituting return of capital from Investments shall in any
event be excluded to the extent used to increase the amount available for
Investment under clause (xv) of the definition of "Permitted Investments" in
accordance with the terms thereof, (8) non-cash compensation charges, including
any arising from existing stock options resulting from any merger or
recapitalization transaction, shall be excluded, and (9) without duplication,
any charges related to the Recapitalization shall be excluded.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxx Xxxxxx, 00xx Xxxxxx, Xxxxxxxx, XX 00000.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement, which may include the
use of derivatives, designed to protect against fluctuations in currency values.
"Default" means any condition or event that is, or with the passing of
time or giving of any notice expressly required under Section 6.01 (or both)
would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Issuer, which Person must be a clearing agency
registered under the Exchange Act.
"Designated Senior Indebtedness," as to the Issuer or any Guarantor,
as the case may be, means (1) so long as Indebtedness under or in respect of the
Senior Credit Facility is outstanding or has commitments for the extension of
credit, such Senior Indebtedness and (2) any other Senior Indebtedness (a) which
at the time of determination exceeds $25,000,000 in aggregate principal amount
(or accreted value in the case of Indebtedness issued at a discount) outstanding
or available under a committed facility, (b) which is specifically designated in
the instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by such Person, and (c) as to which the Trustee has been given
written notice of such designation and, so long as there is a Representative
with respect to the Senior Credit Facility, such Representative shall have
concurred in such designation.
"Disqualified Capital Stock" means any Capital Stock of the Issuer or
a Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, (1) matures on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness; or (2) is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, on or prior to the maturity date of the Notes, for cash
or securities constituting Indebtedness; or (3) is redeemable at the option of
the holder thereof, in whole or in part, on or prior to the maturity date of the
Notes, for cash or securities constituting Indebtedness; provided that Capital
Stock of the Issuer that is held by a current or former employee of the Issuer
subject to a put option and/or a call option with the Issuer triggered by the
termination of such employee's employment with the Issuer and/or the Issuer's
performance shall not be deemed to be Disqualified Capital Stock solely by
virtue of such call option and/or put option. Without limitation of the
foregoing, Disqualified Capital Stock will be deemed to include (a) any
Preferred Stock of a Restricted Subsidiary of the Issuer and (b) any Preferred
Stock of the Issuer, with respect to either of which, under the terms of such
Preferred Stock, by agreement or otherwise, the Issuer is obligated to pay
current dividends or distributions in cash during the period prior to the
maturity date of the Notes; provided, however, that Capital Stock of the Issuer
or any Restricted Subsidiary that is issued with the benefit of provisions
requiring (i) a change of control offer or asset sale proceeds offer to be made
for such Capital Stock in the event of a change of control of or asset sale by
the Issuer or such Restricted Subsidiary, which provisions have substantially
the same effect as Section 4.10 or Section 4.19, as the case may be or (ii)
payment of dividends or redemption only after the Notes have been fully paid,
shall not be deemed to be Disqualified Capital Stock solely by virtue of such
provisions.
"EBITDA" means, for any Person, for any period, an amount equal to (a)
the sum of (i) Consolidated Net Income for such period, plus (ii) the provision
for taxes for such period based on income or profits to the extent such income
or profits were included in computing Consolidated Net Income and any provision
for taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period (but only including Redeemable
Dividends in the calculation of such Consolidated Interest Expense to the extent
that such Redeemable Dividends have not been excluded in the calculation of
Consolidated Net Income), plus (iv) depreciation for such period on a
consolidated basis, plus (v) amortization of intangibles for such period on a
consolidated basis, plus (vi) any other non-cash items (excluding any such
non-cash item to the extent that it represents an accrual of or a reserve for
cash expense in any period subsequent to the period for which EBIDTA is being
calculated) reducing or not included in the definition of Consolidated Net
Income for such period, plus, (vii) without duplication, all cash and non-cash
expenses and restructuring charges arising in connection with the
Recapitalization, minus (b) all non-cash items increasing Consolidated Net
Income for such period, all for such Person and its Subsidiaries determined in
accordance with GAAP, except that with respect to the Issuer each of the
foregoing items shall be determined on a consolidated basis with respect to the
Issuer and its Restricted Subsidiaries only; provided, however, that, for
purposes of calculating EBITDA during any fiscal quarter, cash income from a
particular Investment (other than in a Subsidiary which under GAAP is
consolidated) of such Person shall be included only (x) to the extent that cash
income has been received by such Person with respect to such Investment or (y)
if the cash income derived from such Investment is attributable to Temporary
Cash Investments.
"Equity Investor" means UIC Holdings, L.L.C., a Delaware limited
liability company.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Notes" shall have the meaning assigned thereto in the
Registration Rights Agreement.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.
"Financing Documents" means this Indenture, the
Notes, and the Guarantees.
"Foreign Subsidiary" means a Restricted Subsidiary of the Company (a)
that is organized in a jurisdiction other than the United States of America or a
state thereof or the District of Columbia and (b) with respect to which at least
90% of its sales (as determined in accordance with GAAP) are generated by
operations located in jurisdictions outside the United States of America.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Issuer with respect to the Notes by each Guarantor, if any, pursuant to the
terms of Article 10 hereof, substantially in the form set forth in Exhibit G.
"Guarantor" means each Restricted Subsidiary of the Issuer that
hereafter becomes a Guarantor pursuant to Section 4.14, and "Guarantors" means
such entities, collectively.
"Guarantor Representative" means (1) so long as the Senior Credit
Facility remains outstanding or any commitments thereunder remain in effect, the
agent (or if there is more than one agent therefor, the administrative agent for
the lender parties thereunder) and (2) thereafter the agent, the indenture
trustee, other trustee or other representative for any Guarantor Senior
Indebtedness.
"Guarantor Senior Indebtedness" means the principal of and premium, if
any, and interest (including, without limitation, Accrued Bankruptcy Interest)
on, and any and all other fees, expense reimbursement obligations, indemnities
and other amounts and obligations incurred or owing pursuant to the terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with, (a) any Guarantor's
direct incurrence of any Indebtedness or its guarantee of all Indebtedness of
the Issuer or any Restricted Subsidiaries, in each case, under the Senior Credit
Facility, (b) all obligations of such Guarantor with respect to any Interest
Rate Agreement, (c) all obligations of such Guarantor to reimburse any bank or
other person in respect of amounts paid under letters of credit, acceptances or
other similar instruments, (d) all other Indebtedness of such Guarantor which
does not expressly provide that it is to rank pari passu with or subordinate to
the Guarantees and (e) all deferrals, renewals, extensions, refinancings,
replacements and refundings in whole or in part of, and amendments,
modifications, restatements and supplements to, any of the Indebtedness
described above. Notwithstanding anything to the contrary in the foregoing,
Guarantor Senior Indebtedness will not include (i) Indebtedness of such
Guarantor to any of its Subsidiaries except to the extent such Indebtedness is
pledged as security under the Senior Credit Facility, (ii) Indebtedness
represented by the Guarantees, (iii) any Indebtedness which by the express terms
of the agreement or instrument creating, evidencing or governing the same is
junior or subordinate in right of payment to any other item of Indebtedness of
the Company (although this clause (iii) shall not apply to the subordination of
liens or security interests covering property or assets securing Guaranteed
Senior Indebtedness of the Company); (iv) any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business, or (v) liability for federal, state, local or other taxes owed or
owing by the Issuer.
"Holding Company" means the parent company of the New Operating
Company following the Asset Drop-Down.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "incurrence," "incurred," "incurrable" and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables or liabilities arising from
advance payments or customer deposits for goods and services sold by the Issuer
in the ordinary course of business, and other accrued liabilities arising in the
ordinary course of business) if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, and shall also include, to the extent not
otherwise included (i) any Capitalized Lease Obligations, (ii) obligations
secured by a Lien to which the property or assets owned or held by such Person
is subject, whether or not the obligation or obligations secured thereby shall
have been assumed (provided, however, that if such obligation or obligations
shall not have been assumed, the amount of such Indebtedness shall be deemed to
be the lesser of the principal amount of the obligation or the fair market value
of the pledged property or assets), (iii) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether
or not such items would appear upon the balance sheet of the guarantor), (iv)
all obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (provided that in the case of
any such letters of credit, the items for which such letters of credit provide
credit support are those of other Persons which would be included within this
definition for such other Persons), (v) in the case of the Issuer, Disqualified
Capital Stock of the Issuer or any Restricted Subsidiary thereof, and (vi)
obligations of any such Person under any Interest Rate Agreement applicable to
any of the foregoing (if and to the extent such Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP). The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, provided (i) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the principal amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with GAAP
and (ii) that Indebtedness shall not include any liability for federal, state,
local or other taxes. Notwithstanding any other provision of the foregoing
definition, any trade payable arising from the purchase of goods or materials or
for services obtained in the ordinary course of business shall not be deemed to
be "Indebtedness" of the Issuer or any Restricted Subsidiary for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Individual Investors" means the individuals listed
on Schedule 1.01 hereto.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501 (a)(1), (2), (3) or
(7) promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of
an installment of interest on the Notes.
"Interest Rate Agreement" shall mean any interest or foreign currency
rate swap, cap, collar, option, hedge, forward rate or other similar agreement
or arrangement designed to protect against fluctuations in interest rates or
currency exchange rates.
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business or acquired as part of the assets acquired by the Issuer in connection
with an acquisition of assets which is otherwise permitted by the terms of the
Indenture), loan or capital contribution to (by means of transfers of property
to others, payments for property or services for the account or use of others or
otherwise), the purchase of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the making of any
investment in any Person. Investments shall exclude extensions of trade credit
on commercially reasonable terms in accordance with normal trade practices. For
the purposes of Section 4.09, "Investment" shall include and be valued at the
fair market value of the net assets of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary and
shall exclude the fair market value of the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary. If the Issuer or any Restricted Subsidiary of the Issuer
sells or otherwise disposes of any Common Stock of any direct or indirect
Restricted Subsidiary of the Issuer such that, after giving effect to any such
sale or disposition, the Issuer no longer owns, directly or indirectly, greater
than 50% of the outstanding Common Stock of such Restricted Subsidiary, the
Issuer 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 Common Stock of such
Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date the Notes are first issued by the Issuer
and authenticated by the Trustee under this Indenture.
"Issuer Request" means any written request signed in the names of each
of the Issuer by the Chief Executive Officer, the President, any Vice President,
the Chief Financial Officer or the Treasurer of the Issuer and attested to by
the Secretary or any Assistant Secretary of the Issuer.
"Issuer" means the party named as such in the first paragraph of this
Indenture until a successor replaces such parties pursuant to Article 5 of this
Indenture and thereafter means the successor and any other obligor (other than a
Guarantor) on the Notes. In the event of an Asset Drop-Down, the New Operating
Company shall be the "Issuer" for all purposes hereunder.
"Letter of Credit Obligations" means all Obligations in respect of
Indebtedness of the Issuer or any of its Restricted Subsidiaries with respect to
letters of credit issued pursuant to the Senior Indebtedness which Indebtedness
shall be deemed to consist of (a) the aggregate maximum amount then available to
be drawn under all such letters of credit (the determination of such maximum
amount to assume compliance with all conditions for drawing) and (b) the
aggregate amount that has then been paid by, and not reimbursed to, the issuers
under such letters of credit.
"Lien" means, with respect to any property or assets of any Person,
any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement (other than advance payments or customer deposits for goods and
services sold by the Issuer in the ordinary course of business), security
interest, lien, charge, easement or encumbrance of any kind or nature whatsoever
on or with respect to such property or assets (including, without limitation,
any Capitalized Lease Obligation, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Maturity Date" means April 1, 2009.
"Moody's" means Xxxxx'x Investors Service, Inc. and
its successors.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by
any Person, the aggregate net proceeds received by such Person, after payment of
expenses, commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in property (valued at the fair market value
thereof, as determined in good faith by the Board of Directors of such Person,
at the time of receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind for or into shares
of Capital Stock of any Person which is not Disqualified Capital Stock, the net
book value of such outstanding securities on the date of such exchange,
exercise, conversion or surrender (plus any additional amount required to be
paid by the holder to any Person upon such exchange, exercise, conversion or
surrender, less any and all payments made to the holders, e.g., on account of
fractional shares and less all expenses incurred by the Issuer in connection
therewith).
"New Operating Company" means the newly-formed Wholly-Owned Subsidiary
of United Industries Corporation, which becomes the "Issuer" hereunder pursuant
to the Asset Drop-Down.
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles (or, in the case of any of the events
described in clause (7) of Section 6.01, with the passage of time would entitle)
one or more Persons to accelerate the maturity of any Designated Senior
Indebtedness.
"Non-U.S. Person" means a person who is not a U.S.
person, as defined in Regulation S.
"Notes" means the securities that are issued under this Indenture, as
amended or supplemented from time to time pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other expenses and liabilities payable under the documentation governing
such Indebtedness.
"Offering Memorandum" means the Final Offering Memorandum dated March
19, 1999 pursuant to which the Notes were offered.
"Officer," with respect to any Person (other than the Trustee), means
the Chief Executive Officer, the President, any Vice President and the Chief
Financial Officer, the Treasurer or the Secretary of such Person, or any other
officer designated by the Board of Directors of such Person, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion reasonably satisfactory
in form and substance to the Trustee from legal counsel which counsel is
reasonably acceptable to the Trustee stating the matters required by Section
12.05 and delivered to the Trustee.
"Payment Default" means any default, whether or not any requirement
for the giving of notice, the lapse of time or both, or any other condition to
such default becoming an event of default has occurred, in the payment of
principal of (or premium, if any) or interest on or any other Obligations
payable in connection with Designated Senior Indebtedness.
"Permitted Holders" means, collectively, (i) the Issuer and, in the
event of the Asset Drop-Down, the Holding Company, (ii) any THL Group Member,
(iii) the Individual Investors, each of the spouses, children (adoptive or
biological) or other lineal descendants of the Individual Investors, the probate
estate of any such individual and any trust, so long as one or more of the
foregoing individuals retains substantially all of the controlling or beneficial
interest thereunder, and (iv) any underwriter during the course of an
underwritten public offering until completion of the initial distribution
thereof.
"Permitted Indebtedness" means:
(i) Indebtedness of the Issuer or any Restricted Subsidiary arising
under or in connection with the Senior Credit Facility in an amount not to
exceed the sum of (a) $225,000,000 plus (b) the greater of (i) $110,000,000
or (ii) the aggregate of 80% of the accounts receivable and 50% of the
inventory of the Issuer and its consolidated Restricted Subsidiaries, which
sum shall be reduced by any mandatory prepayments actually made thereunder
required as a result of any Asset Sale or similar sale of assets (to the
extent, in the case of payments of revolving credit indebtedness, that the
corresponding commitments have been permanently reduced) and any scheduled
payments actually made thereunder;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness of Foreign Subsidiaries not to exceed $5,000,000 in
the aggregate at any one time outstanding;
(iv) Indebtedness not covered by any other clause of this definition
which is outstanding on the date of this Indenture including for purposes
of this clause (iv) Capitalized Lease Obligations in an amount not to
exceed $10,000,000 incurred in the leasing of an aircraft for use by the
Issuer, which lease is entered into on or before September 30, 1999;
(v) Indebtedness of the Issuer to any Restricted Subsidiary of the
Issuer and Indebtedness of any Restricted Subsidiary of the Issuer to the
Issuer or another Restricted Subsidiary of the Issuer; provided that (a) if
the Issuer or any Guarantor is the obligor on such Indebtedness, such
Indebtedness is unsecured and expressly subordinated to the payment in full
to all obligations in respect of the Notes and the Guarantee of such
Guarantor on terms substantially in the form provided in this Indenture and
(b)(i) any subsequent issuance or transfer of equity interests that results
in any such Indebtedness being held by a Person other than the Issuer or a
Restricted Subsidiary of the Issuer, and (ii) any sale or transfer of any
such Indebtedness to a Person other than the Issuer or a Restricted
Subsidiary of the Issuer, shall be deemed to constitute an incurrence of
Indebtedness by the Issuer or such Restricted Subsidiary not permitted by
this clause (v);
(vi) Interest Rate Agreements;
(vii) Refinancing Indebtedness;
(viii) Indebtedness under Commodity Hedge Agreements and Currency
Agreements entered into in the ordinary course of business consistent with
reasonable business requirements and not for speculation;
(ix) Indebtedness consisting of guarantees made in the ordinary course
of business by the Issuer or its Subsidiaries of obligations of the Issuer
or any of its Subsidiaries, which obligations are not otherwise prohibited
under this Indenture;
(x) contingent obligations of the Issuer or its Subsidiaries in
respect of customary indemnification and purchase price adjustment
obligations incurred in connection with an Asset Sale; provided that the
maximum assumable liability in respect of all such obligations shall at no
time exceed the gross proceeds actually received by the Issuer and its
Subsidiaries in connection with such Asset Sale;
(xi) Indebtedness incurred in respect of performance, surety and other
similar bonds and completion guarantees provided by the Issuer and the
Restricted Subsidiaries in the ordinary course of business, and extensions,
refinancings and replacements thereof;
(xii) Indebtedness incurred by the Issuer or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit issued in the ordinary course of business, including, without
limitation, letters of credit in respect of workers' compensation claims or
self-insurance, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation or other similar claims;
(xiii) Purchase Money Indebtedness and Capitalized Lease Obligations of
the Issuer and its Subsidiaries incurred to acquire, construct of improve
property and assets in the ordinary course of business and any
refinancings, renewals or replacements of any such Purchase Money
Indebtedness or Capitalized Lease Obligation (subject to the limitations on
the principal amount thereof set forth in this clause (xiii)), the
principal amount of which Purchase Money Indebtedness and Capitalized Lease
Obligations shall not in the aggregate at any one time outstanding exceed
$15,000,000; and
(xiv) additional Indebtedness of the Issuer or any of its Subsidiaries
(other than Indebtedness specified in clauses (i) through (xiii) above) not
to exceed $25,000,000 in the aggregate at any one time outstanding.
"Permitted Investments" means, for any Person, Investments made on or
after the date of this Indenture consisting of:
(i) Investments by the Issuer, or by a Restricted
Subsidiary thereof, in the Issuer or a Restricted
Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Issuer, or by a Restricted Subsidiary thereof,
in a Person, if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Issuer, (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Issuer or a
Restricted Subsidiary thereof or (c) such business or assets are owned by
the Issuer or a Restricted Subsidiary;
(iv) an Investment that is made by the Issuer or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to either or both of the Issuer or a Restricted Subsidiary
solely as partial consideration for the consummation of an Asset Sale that
is otherwise permitted by Section 4.10;
(v) Investments consisting of (a) purchases and acquisitions of
inventory, supplies, materials and equipment, or (b) licenses or leases of
intellectual property and other assets, in each case in the ordinary course
of business;
(vi) Investments consisting of (a) loans and advances to employees for
reasonable travel, relocation and business expenses in the ordinary course
of business not to exceed $2,000,000 in the aggregate at any one time
outstanding, (b) loans to employees of the Issuer or its Subsidiaries for
the sole purpose of purchasing equity of the Issuer, (c) extensions of
trade credit in the ordinary course of business, and (d) prepaid expenses
incurred in the ordinary course of business;
(vii) without duplication, Investments consisting of Indebtedness
permitted pursuant to clause (v) of the definition of Permitted
Indebtedness;
(viii) Investments existing on the date of this Indenture;
(ix) Investments of the Issuer under Interest Rate
Agreements;
(x) Investments under Commodity Hedge Agreements and Currency
Agreements entered into in the ordinary course of business consistent with
reasonable business requirements and not for speculation;
(xi) Investments consisting of endorsements for collection or deposit
in the ordinary course of business;
(xii) Investments in suppliers or customers that are in bankruptcy,
receivership or similar proceedings or as a result of foreclosure on a
secured Investment in a third party received in exchange for or
cancellation of an existing obligation of such supplier or customer to the
Issuer or a Restricted Subsidiary;
(xiii) Investments paid for solely with Capital Stock (other than
Disqualified Capital Stock) of the Issuer;
(xiv) Investments in joint venture arrangements (which may be structured
as corporations, partnerships, trusts, limited liability companies or other
Persons), or in a Person which as a result of such Investment becomes a
joint venture arrangement, in an aggregate amount, as valued at the time
each such Investment is made, not exceeding $10,000,000 for all such
Investments from and after the date hereof; and
(xv) Investments (other than Investments specified in clauses (i)
through (xiv) above) in an aggregate amount, as valued at the time each
such Investment is made, not exceeding $10,000,000 for all such Investments
from and after the Issue Date; provided that the amount available for
Investments to be made pursuant to this clause (xv) shall be increased from
time to time (a) to the extent any return of capital is received by the
Issuer or a Restricted Subsidiary on an Investment previously made in
reliance on this clause (xv), in each case, up to, but not exceeding, the
amount of the original Investment but only to the extent such return of
capital is excluded from Consolidated Net Income and (b) by 100% of the
aggregate net proceeds of any equity contribution received by the Issuer
(other than in return for Disqualified Capital Stock) from a holder of the
Issuer's Capital Stock, net of any amounts thereof used to calculate
amounts available for Restricted Payments pursuant to clause (a)(iii) of
Section 4.09 or previously relied upon to make any Permitted Investments
pursuant to this clause (xv).
Not later than the date of making of any Permitted Investment made in
reliance on clause (xv) above that includes proceeds described in clause (b)
thereof, the Issuer shall deliver to the Trustee an Officers' Certificate
stating that such Permitted Investment is permitted and setting forth in
reasonable detail the date, amount and nature of the purchase or contribution
being relied upon.
"Permitted Liens" means (i) Liens on property or assets of, or any
shares of stock of or secured debt of, any corporation or other entity existing
at the time such corporation or other entity becomes a Restricted Subsidiary of
the Issuer or at the time such corporation or other entity is merged into the
Issuer or any of its Restricted Subsidiaries; provided that such Liens are not
incurred in connection with, or in contemplation of, such corporation becoming a
Restricted Subsidiary of the Issuer or merging into the Issuer or any of its
Restricted Subsidiaries, (ii) Liens securing Refinancing Indebtedness; provided
that any such Lien does not extend to or cover any Property, shares or debt
other than the Property, shares or debt securing the Indebtedness so refunded,
refinanced or extended, (iii) Liens in favor of the Issuer or any of its
Restricted Subsidiaries and (iv) Liens existing on the Issue Date.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Physical Notes" means certificated Notes in registered form in
substantially the form set forth in Exhibit A.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Private Exchange Notes" shall have the meaning assigned thereto in
the Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Rule 144A Notes and on any Physical Notes (other than Regulation S Notes)
delivered prior to the issuance of the Exchange Notes in the form set forth in
Exhibit B.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Purchase Money Indebtedness" means any Indebtedness incurred by a
Person to finance (within 90 days from incurrence) the cost (including the cost
of construction or improvement) of an item of Property acquired in the ordinary
course of business, the principal amount of which Indebtedness does not exceed
the sum of (i) 100% of such cost and (ii) reasonable fees and expenses of such
Person incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"Qualified Public Offering" means a public offering and sale by the
Issuer (or, in the event of the Asset Drop-Down, the New Operating Company or
the Holding Company) of shares of its common stock (however designated and
whether voting or non-voting) and any and all rights, warrants or options to
acquire such common stock pursuant to a registration statement registered
pursuant to the Securities Act; provided that the aggregate Net Proceeds to the
Issuer or the Holding Company in the event of an Asset Drop-Down, from such
offering and sale is at least $25,000,000 and, provided, further that, in the
event of the Asset Drop-Down and a subsequent Qualified Public Offering by the
Holding Company, the Holding Company will contribute to the capital of the New
Operating Company that portion of the Net Proceeds thereof necessary to pay the
aggregate redemption price (including accrued interest) of the Notes to be
redeemed.
"Recapitalization" means the transactions described
in the Recapitalization Agreement.
"Recapitalization Agreement" means the Agreement and Plan of
Recapitalization, Purchase and Redemption Agreement dated as of December 24,
1998 as amended by Amendment No. 1 dated January 20, 1999 and Amendment No. 2
dated January 25, 1999 by and among the Sellers named therein, the Issuer, and
the Equity Investor.
"Redeemable Dividend" means, for any dividend or distribution with
regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to the terms of the Notes.
"Refinancing Indebtedness" means Indebtedness that is issued in
exchange for, or refunds, refinances, renews, replaces, defeases or extends in
whole or in part any Indebtedness of the Issuer outstanding on the Issue Date or
other Indebtedness permitted to be incurred by the Issuer or its Restricted
Subsidiaries pursuant to the terms of this Indenture, but only to the extent
that (i) the Refinancing Indebtedness is subordinated to the Notes to at least
the same extent as the Indebtedness being exchanged for, refunded, refinanced,
renewed, replaced, defeased or extended, if at all, (ii) the Refinancing
Indebtedness is scheduled to mature either (a) no earlier than the Indebtedness
being refunded, refinanced or extended, or (b) after the maturity date of the
Notes, (iii) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the maturity date of the Notes has a weighted
average life to maturity at the time such Refinancing Indebtedness is incurred
that is equal to or greater than the weighted average life to maturity of the
portion of the Indebtedness being refunded, refinanced or extended that is
scheduled to mature on or prior to the maturity date of the Notes, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to or
less than the sum of (a) the aggregate principal amount then outstanding under
the Indebtedness being refunded, refinanced or extended, (b) the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not in excess of
preexisting prepayment provisions on such Indebtedness being refunded,
refinanced or extended and (c) the amount of customary fees, expenses, and costs
related to the incurrence of such Refinancing Indebtedness and (v) such
Reifnancing Indebtedness is incurred by the same Person that initially incurred
the Indebtedness being refunded, refinanced or extended, except that the Issuer
or a Wholly-Owned Subsidiary thereof may incur Refinancing Indebtedness to
refund, refinance or extend Indebtedness of the Issuer or any Wholly-Owned
Subsidiary of the Issuer.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of March 24, 1999 among the Issuer and CIBC Xxxxxxxxxxx Corp.
and NationsBanc Xxxxxxxxxx Securities, LLC, as Initial Purchasers.
"Regulation S" means Regulation S promulgated under
the Securities Act.
"Representative" means (a) so long as the Senior Credit Facility
remains outstanding or any commitments thereunder remain in effect, the agent
(or if there is more than one agent therefor, the administrative agent for the
lender parties thereunder) and (b) thereafter the agent, indenture trustee,
other trustee or other representative for any Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee, means an
officer or assistant officer assigned to the corporate trust department of the
Trustee (or any successor group of the Trustee) including any vice president,
assistant vice president, assistant secretary, treasurer or assistant treasurer
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Payment" means any of the following: (i) the declaration
or payment of any dividend or any other distribution or payment on Capital Stock
of the Issuer or any Restricted Subsidiary of the Issuer or any payment made to
the direct or indirect holders (in their capacities as such) of Capital Stock of
the Issuer or any Restricted Subsidiary of the Issuer (other than (x) dividends
or distributions payable solely in Capital Stock (other than Disqualified
Capital Stock) or in options, warrants or other rights to purchase Capital Stock
(other than Disqualified Capital Stock) and (y) in the case of Restricted
Subsidiaries of the Issuer, dividends or distributions payable to the Issuer or
to a Wholly-Owned Subsidiary of the Issuer), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Issuer or
any of its Restricted Subsidiaries (other than Capital Stock owned by the Issuer
or a Wholly-Owned Subsidiary of the Issuer, excluding Disqualified Capital
Stock), (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is subordinated in right of payment to the
Notes other than subordinated Indebtedness acquired in anticipation of
satisfying a scheduled sinking fund obligation, principal installment or final
maturity (in each case due within one year of the date of acquisition), (iv) the
making of any Investment or guarantee of any Investment in any Person other than
a Permitted Investment, (v) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary on the basis of the Investment by the Issuer therein and
(vi) forgiveness of any Indebtedness of an Affiliate of the Issuer (other than a
Restricted Subsidiary) to the Issuer or a Restricted Subsidiary. For purposes of
determining the amount expended for Restricted Payments, cash distributed or
invested shall be valued at the face amount thereof and property other than cash
shall be valued at its fair market value determined by the Issuer's Board of
Directors.
"Restricted Subsidiary" means a Subsidiary of the Issuer other than an
Unrestricted Subsidiary. The Board of Directors of the Issuer may designate any
Unrestricted Subsidiary or any Person that is to become a Subsidiary as a
Restricted Subsidiary if: (i) immediately after giving effect to such action
(and treating any Acquired Indebtedness as having been incurred at the time of
such action), the Issuer could have incurred at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.06 and
(ii) no Default or Event of Default shall have occurred and be continuing. The
Issuer shall deliver an Officers' Certificate to the Holders upon designating
any Unrestricted Subsidiary as a Restricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the
Securities Act.
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Issuer or any Restricted Subsidiary of
the Issuer of any real or tangible personal Property, which Property has been or
is to be sold or transferred by the Issuer or such Restricted Subsidiary to such
Person in contemplation of such leasing.
"S&P" means Standard & Poor's Ratings Services, a
division of the XxXxxx-Xxxx Company, Inc. and its successors.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities Act" means the Securities Act of 1933,
as amended.
"Senior Credit Facility" means the Amended and Restated Credit
Agreement, dated as of March 24, 1999, among the Issuer, the banks, financial
institutions and other institutional lenders from time to time party thereto,
NationsBank, N.A., as the Swing Line Bank and the Initial Issuing Bank
thereunder, NationsBanc Xxxxxxxxxx Securities LLC and Xxxxxx Xxxxxxx Senior
Funding, Inc., as the Co-Arrangers therefor, Canadian Imperial Bank of Commerce,
as Documentation Agent therefor, Xxxxxx Xxxxxxx Senior Funding, Inc., as
Syndication Agent thereunder, NationsBanc Xxxxxxxxxx Securities LLC, as Lead
Arranger and Book Manager therefor, and NationsBank, N.A., as Administrative
Agent for the lender parties thereunder, together with all "Loan Documents" as
defined therein and all other documents related thereto (including, without
limitation, any notes, guarantee agreements, security documents and Interest
Rate Agreements), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
renewing, replacing or otherwise restructuring (including increasing the amount
of available borrowings thereunder or adding Subsidiaries of the Issuer as
additional borrowers or guarantors thereunder), in whole or in part, all or any
portion of the Indebtedness under such agreement or any successor or replacement
and whether by the same or any other agent, lender or group of lenders or other
party thereto.
"Senior Indebtedness" means the principal of and premium, if any, and
interest (including, without limitation, Accrued Bankruptcy Interest) on, and
any and all other fees, expense reimbursement obligations, indemnities and other
amounts and Obligations incurred or owing pursuant to the terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all Indebtedness of
the Issuer under the Senior Credit Facility, (b) all obligations of the Issuer
with respect to any Interest Rate Agreement, (c) all obligations of the Issuer
to reimburse any bank or other Person in respect of amounts paid under letters
of credit, acceptances or other similar instruments, (d) all other Indebtedness
of the Issuer which does not expressly provide that it is to rank pari passu
with or subordinate to the Notes and (e) all deferrals, renewals, extensions,
refinancings, replacements and refundings in whole or in part of, and
amendments, modifications, restatements and supplements to, any of the Senior
Indebtedness described above. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (i) Indebtedness of the Issuer
to any of its Subsidiaries, except to the extent such Indebtedness is pledged as
security under the Senior Credit Facility, (ii) Indebtedness represented by the
Notes, (iii) any Indebtedness which by the express terms of the agreement or
instrument creating, evidencing or governing the same is junior or subordinate
in right of payment to any other item of Indebtedness of the Issuer (although
this clause (iii) shall not apply to the subordination of liens or security
interests covering property or assets securing Senior Indebtedness), (iv) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, or (v) liability for federal,
state, local or other taxes owed or owing by the Issuer.
"Subsidiary" of any specified Person means any corporation,
partnership, limited liability company, joint venture, association or other
business entity, whether now existing or hereafter organized or acquired, (i) in
the case of a corporation, of which more than 50% of the total voting power of
the Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, officers or trustees thereof is held by
such first-named Person or any of its Subsidiaries; or (ii) in the case of a
partnership, limited liability company, joint venture, association or other
business entity, with respect to which such first-named Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise or if in accordance with
GAAP such entity is consolidated with the first-named Person for financial
statement purposes.
"Temporary Cash Investments" means (i) Investments in marketable
direct obligations issued or guaranteed by the United States of America, or of
any governmental agency or political subdivision thereof, maturing within 365
days of the date of purchase; (ii) Investments in certificates of deposit and
time deposits issued by a lender under the Senior Credit Facility or by a bank
(or subsidiary of a bank holding company) organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each case
having capital, surplus and undivided profits at the time of investment totaling
more than $500,000,000 and rated at the time of investment at least A by S&P and
A-2 by Xxxxx'x maturing within 365 days of purchase; or (iii) commercial paper
issued by any Person organized under the laws of any state of the United States
of America and rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x or at least "A-1" (or the then equivalent grade) by S&P, in each case
with a maturity of not more than 180 days from the date of acquisition thereof;
or (iv) Investments not exceeding 365 days in duration in money market funds
that invest substantially all of such funds' assets in the Investments described
in the preceding clauses (i), (ii), and (iii).
"THL" means Xxxxxx X. Xxx Equity Fund IV, L.P.
"THL Fees" means (i) management fees under the management agreement
between the Issuer and THL and its Affiliates and successors and assigns that do
not exceed $750,000 per year and the reimbursement of expenses pursuant thereto,
provided that the amount of such management fees paid per year shall increase to
$1,500,000 if at the time of such payment the Issuer could incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.06 and (ii) one time fees to THL in connection with each acquisition
of a company or a line of business by the Issuer or its Subsidiaries, such fees
to be payable at the time of each such acquisition and not to exceed 1% of the
aggregate consideration paid by the Issuer and its Subsidiaries for any such
acquisition.
"THL Group Member" means THL and any Affiliate thereof (including any
equity fund advised by any such Affiliate) (other than any of their portfolio
companies).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below; and (ii) any Subsidiary of an Unrestricted
Subsidiary.
The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Issuer or any other Subsidiary of the Issuer that is not a
Subsidiary of the Subsidiary to be so designated; provided that (i) such
designation complies with Section 4.09; and (ii) each Subsidiary to be so
designated and each of its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Issuer or any of its
Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary only if (i) immediately after giving effect to such
designation and treating all Indebtedness of such Unrestricted Subsidiary as
being incurred on such date, the Issuer is able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.06; and (ii) immediately before and immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing.
Any such designation by the Board of Directors shall be evidenced by
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
The Trustee shall be given prompt notice by the Issuer of each Board
Resolution of the Issuer under this provision, together with a copy of each such
resolution adopted.
"U.S. Government Obligations" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Wholly-Owned Subsidiary" of a specified Person means any Subsidiary
(or, if such specified Person is the Issuer, a Restricted Subsidiary), all of
the outstanding voting securities (other than directors' qualifying shares) of
which are owned, directly or indirectly, by such Person.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction".................... 4.11(a)
"Agent Members"............................ 2.16(a)
"Bankruptcy Law"........................... 6.01
"Business Day"............................. 12.07
"CEDEL" 2.16(a)
"Change of Control Offer".................. 4.19(a)
"Change of Control Payment Date"........... 4.19(b)
"Change of Control Purchase Price" 4.19(a)
"Covenant Defeasance"...................... 9.03
"Custodian"................................ 6.01
"Euroclear"................................ 2.16(a)
"Event of Default"......................... 6.01
"Excess Proceeds Offer".................... 4.10(a)
"Global Notes"............................. 2.16(a)
"Guarantee Payment Blockage Period"........ 10.07(b)
"Guarantor Representative.................. 10.07(a)
"Initial Blockage Period".................. 11.03(b)
"Initial Guarantee Blockage Period"........ 10.07(b)
"Legal Defeasance"......................... 9.02
"Legal Holiday"............................ 12.07
"Offer Period"............................. 4.10(b)
"Other Notes".............................. 2.02
"Paying Agent"............................. 2.03
"Payment Blockage Period".................. 11.03(b)
"Purchase Date"............................ 4.10(b)
"Registrar"................................ 2.03
"Regulation S Global Notes"................ 2.16(a)
"Regulation S Notes"....................... 2.02
"Reinvestment Date"........................ 4.10(a)
"Restricted Global Note"................... 2.16(a)
"Restricted Period"........................ 2.16(f)
"Rule 144A Notes".......................... 2.02
"Subordinated Obligations"................. 11.01
Section 1.03. Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor on the indenture securities" means the
Issuer, the Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein,
whether defined expressly or by reference;
(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;
(5) words used herein implying any gender shall apply to every gender;
and
(6) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof.
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes.
The Trustee shall authenticate Notes for original issue on the Issue
Date in the aggregate principal amount of $150,000,000, upon a written order of
the Issuer in the form of an Officers' Certificate of the Issuer. Such written
order shall specify the amount of Notes to be authenticated and the date on
which the Notes are to be authenticated.
Upon receipt of an Issuer Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement is effective and that the conditions
precedent to a private exchange thereunder have been met, the Trustee shall
authenticate an additional series of Notes in an aggregate principal amount not
to exceed $150,000,000 for issuance in exchange for the Notes tendered for
exchange pursuant to such exchange offer registered under the Securities Act not
bearing the Private Placement Legend or pursuant to a Private Exchange. Exchange
Notes or Private Exchange Notes may have such distinctive series designations
and such changes in the form thereof as are specified in the Issuer Request
referred to in the preceding sentence.
Section 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication with respect
thereto shall be substantially in the form set forth in Exhibit A, which is
incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Issuer are subject. Any such notations, legends or endorsements shall be
furnished to the Trustee in writing. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the legend and include the form of
assignment set forth in Exhibit B, Notes offered and sold in offshore
transactions in reliance on Regulation S ("Regulation S Notes") shall bear the
legend and include the form of assignment set forth in Exhibit C, and Notes
offered and sold to Institutional Accredited Investors in transactions exempt
from registration under the Securities Act not made in reliance on Rule 144A or
Regulation S ("Other Notes") shall be represented by Physical Notes bearing the
Private Placement Legend. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes shall constitute, and
are expressly made, a part of this Indenture and, to the extent applicable, the
Issuer and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and agree to be bound thereby.
The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar in the Borough of Manhattan.
Section 2.03. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one Officer
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Issuer by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Issuer, and the Issuer shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuer to authenticate the Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate the 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 Issuer and Affiliates of the Issuer.
Each Paying Agent is designated as an authenticating agent for purposes of this
Indenture.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
Section 2.04. Registrar and Paying Agent.
The Issuer shall maintain an office or agency (which shall be located
in the Borough of Manhattan in The City of New York, State of New York) where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Issuer, if any, in respect of the Notes and this Indenture may be
served. The Issuer hereby initially designates the office of State Street Bank
and Trust Company, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, ATTN: Corporate Trust
Division, as their office or agency in the Borough of Manhattan, The City of New
York. The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuer may have one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent. Neither the Issuer nor any
Affiliate thereof may act as Paying Agent. The Issuer may change any Paying
Agent or Registrar without notice to any Noteholder.
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuer shall notify the Trustee of the name and
address of any such Agent. If the Issuer fail to maintain a Registrar or Paying
Agent, or fail to give the foregoing notice, the Trustee shall act as such and
shall be entitled to compensation in accordance with Section 7.07.
The Issuer initially designate the Corporate Trust Office of the
Trustee as Registrar, Paying Agent and agent for service of notices and demands
in connection with the Notes and this Indenture.
Section 2.05. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Issuer or any other obligor on the Notes), and the Issuer and
the Paying Agent shall notify the Trustee of any default by the Issuer (or any
other obligor on the Notes) in making any such payment. Money held in trust by
the Paying Agent need not be segregated except as required by law and in no
event shall the Paying Agent be liable for any interest on any money received by
it hereunder. The Issuer at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any Event of Default specified
in Section 6.01(1) or (2), upon written request to the Paying Agent, require
such Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 2.06. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Noteholders. If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least five Business Days before each Interest Payment Date,
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Noteholders.
Section 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. Every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Issuer shall issue and execute and the Trustee
shall authenticate new Notes evidencing such transfer or exchange at the
Registrar's request. No service charge shall be made to the Noteholder for any
registration of transfer or exchange. The Issuer may require from the Noteholder
payment of a sum sufficient to cover any transfer taxes or other governmental
charge that may be imposed in relation to a transfer or exchange, but this
provision shall not apply to any exchange pursuant to Section 2.11, 3.06, 4.10,
4.19 or 8.05 (in which events the Issuer shall be responsible for the payment of
such taxes). The Trustee shall not be required to exchange or register a
transfer of any Note for a period of 15 days immediately preceding the selection
of Notes to be redeemed or any Note selected for redemption.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Issuer, the Registrar
and the Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder's Note in violation of any provision of
this Indenture and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Issuer's compliance with or have
any responsibility with respect to the Issuer's compliance with any Federal or
state securities laws.
Section 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee, or
if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a
replacement Note if the Holder of such Note furnishes to the Issuer and the
Trustee evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Note and if the requirements of Section 8-405
of the New York Uniform Commercial Code as in effect on the date of this
Indenture are met. If required by the Trustee or the Issuer, an indemnity bond
shall be posted, sufficient in the judgment of both to protect the Issuer, the
Trustee or any Paying Agent from any loss that any of them may suffer if such
Note is replaced. The Issuer may charge such Holder for the Issuer' reasonable
out-of-pocket expenses in replacing such Note and the Trustee may charge the
Issuer for the Trustee's expenses (including, without limitation, attorneys'
fees and disbursements) in replacing such Note. Every replacement Note shall
constitute an additional contractual obligation of the Issuer, subject to
Section 2.09.
Section 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because an Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives written notice that the replaced Note is
held by a bona fide purchaser in whose hands such Note is a legal, valid and
binding obligation of the Issuer.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date or on any optional redemption date, money sufficient to pay all accrued
interest and principal with respect to the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by an Issuer or any Affiliate of an Issuer shall be
disregarded as though they were not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
declaration, notice, direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has received an Officers' Certificate stating that such Notes are
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes the pledgee's right so
to act with respect to the Notes and that the pledgee is not either of the
Issuer, any other obligor or guarantor on the Notes or any of their respective
Affiliates.
Section 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Issuer
may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Issuer consider appropriate for temporary Notes. Without unreasonable
delay, the Issuer shall prepare and the Trustee 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 2.12. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the 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 and shall (subject to the
record-retention requirements of the Exchange Act) destroy canceled Notes and
deliver a certificate of destruction thereof to the Issuer. The Issuer may not
reissue or resell, or issue new Notes to replace, Notes that the Issuer have
redeemed or paid, or that have been delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Issuer defaults on a payment of interest on the Notes, they
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, pursuant to Section 4.01 hereof, to
the Persons who are Noteholders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Issuer shall
fix such special record date and payment date and provide the Trustee at least
20 days notice of the proposed amount of defaulted interest to be paid and the
special payment date and at the same time the Issuer shall deposit with the
Trustee the aggregate amount proposed to be paid in respect of such defaulted
interest. At least 15 days before such special record date, the Issuer shall
mail to each Noteholder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on
defaulted interest, if any, to be paid. The Issuer may make payment of any
defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Notes may
be listed and, upon such notice as may be required by such exchange, if, after
written notice given by the Issuer to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
Section 2.14. CUSIP Number.
The Issuer in issuing the Notes may use a "CUSIP" number, and if so,
such CUSIP number shall be included 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 Issuer shall promptly
notify the Trustee of any such CUSIP number used by the Issuer in connection
with the issuance of the Notes and of any change in the CUSIP number.
Section 2.15. Deposit of Moneys.
Prior to 11:00 a.m., New York City time, on each Interest Payment Date
and Maturity Date, the Issuer shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as
the case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal and interest on Physical Notes shall be
payable at the office of the Paying Agent. The Issuer shall deliver an Officers'
Certificate to the Trustee, at least 5 business days before any applicable
payment date, setting forth the amount of Additional Interest due per $1,000
aggregate principal amount of Notes.
Section 2.16. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes initially shall be represented by one or more
notes in registered, global form without interest coupons (collectively, the
"Restricted Global Note"). Regulation S Notes initially shall be represented by
one or more notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Restricted
Global Note and any other global notes representing Notes, the "Global Notes").
The Global Notes shall bear legends as set forth in Exhibit D. The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, in each case for credit to an account of an Agent Member
(or, in the case of the Regulation S Global Notes, Agent Members of the
Depository holding for Euroclear System ("Euroclear") and Cedel Bank, S.A.
("CEDEL")), (ii) be delivered to the Trustee as custodian for such Depository
and (iii) bear legends as set forth in Exhibit B with respect to Restricted
Global Notes and Exhibit C with respect to Regulation S Global Notes.
Members of, or direct or indirect participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be treated by the
Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trustee or any agent of the Issuer
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) the Depository (x) notifies the Issuer
that it is unwilling or unable to continue as depository for such Global Note
and the Issuer thereupon fail to appoint a successor depository or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Issuer, at their option, notify the Trustee in writing that they elect to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing a Default or an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository (in accordance with
its customary procedures).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuer
shall execute, and the Trustee shall upon receipt of a written order from the
Issuer authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuer shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in writing in exchange for its beneficial interest
in the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in Exhibit C, in each case, unless the Issuer
determine otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the commencement of
the offering of the Notes represented by a Regulation S Global Note and the
original issue date of such Notes (such period through and including such 40th
day, the "Restricted Period"), a beneficial interest in the Regulation S Global
Note may be held only through Euroclear or CEDEL, as indirect participants in
DTC, unless transferred to a Person who takes delivery in the form of an
interest in the corresponding Restricted Global Note, only upon receipt by the
Trustee of a written certification from the transferor to the effect that such
transfer is being made (i)(a) to a Person who the transferor reasonably believes
is a Qualified Institutional Buyer in a transaction meeting the requirements of
Rule 144A or (b) pursuant to another exemption from the registration
requirements under the Securities Act which is accompanied by an opinion of
counsel regarding the availability of such exemption and (ii) in accordance with
all applicable securities laws of any state of the United States or any other
jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
CEDEL.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions
shall apply with respect to the registration of any proposed
transfer of a Note constituting a Restricted Note to any
Institutional Accredited Investor which is not a QIB or to
any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note constituting
a Restricted Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after March 24, 2001 or such other
date as such Note shall be freely transferable under Rule 144 as certified
in an Officers' Certificate or (y) (1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit E hereto or (2) in the
case of a transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit F hereto; provided that in the case of a transfer of a
Note bearing the Private Placement Legend for a Note not bearing the
Private Placement Legend, the Registrar has received an Officers'
Certificate authorizing such transfer; and
(ii) if the proposed transferor is an Agent Member holding a beneficial
interest in a Global Note, upon receipt by the Registrar of (x) the
certificate, if any, required by paragraph (i) above and (y) instructions
given in accordance with the Depository's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Issuer shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed registration of transfer of a Note
constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
such Holder's Note stating, or has otherwise advised the Issuer and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on such Holder's Note stating, or has otherwise advised the
Issuer and the Registrar in writing, that it is purchasing the Note for its
own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Restricted Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Restricted
Global Note in an amount equal to the principal amount of the Physical
Notes to be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) it has received the Officers' Certificate
required by paragraph (a)(i)(x) of this Section 2.17, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (iii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Registrar has received an Officers'
Certificate from the Issuer to such effect.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 or this Section 2.17. The Issuer shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable notice to the Registrar.
Section 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to paragraph 6 of the
Notes, at least 30 days prior to the Redemption Date or during such other period
as the Trustee may agree to (which agreement shall not unreasonably be withheld)
the Issuer shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the redemption price, and deliver
to the Trustee an Officers' Certificate stating that such redemption will comply
with the conditions contained in paragraph 6 of the Notes, as appropriate.
Section 3.02. Selection by Trustee of Notes to Be
Redeemed.
In the event that fewer than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed, if the Notes are listed on a
national securities exchange, in accordance with the rules of such exchange or,
if the Notes are not so listed, either on a pro rata basis or by lot, or such
other method as it shall deem fair and equitable; provided, however, that the
Issuer shall have previously notified the Trustee in writing of any such
exchange on which the Notes are listed, and provided, further, that if a partial
redemption is made with the proceeds of a Qualified Public Offering, selection
of the Notes or portion thereof for redemption shall be made by the Trustee on a
pro rata basis, unless such a method is prohibited. The Trustee shall promptly
notify the Issuer of the Notes selected for redemption and, in the case of any
Notes selected for partial redemption, the principal amount thereof to be
redeemed. The Trustee may select for redemption portions of the principal of the
Notes that have denominations larger than $1,000. Notes and portions thereof the
Trustee selects shall be redeemed in amounts of $1,000 or whole multiples of
$1,000. For all purposes of this Indenture unless the context otherwise
requires, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption Date,
the Issuer shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including the
CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and accrued
interest to be paid;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date and upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Issuer defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
(7) the provision of paragraph 6 of the Notes pursuant to which the
Notes called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are being redeemed.
At the Issuer's written request made at least five Business Days prior
to the date on which notice is to be given, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price, including any premium, plus interest accrued to the
Redemption Date, provided that if the Redemption Date is after a regular record
date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record
date, and provided, further, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
Section 3.05. Deposit of Redemption Price.
On or prior to 11:00 A.M., New York City time, on each Redemption
Date, the Issuer shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Issuer to
the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of, premium, if any, and accrued interest on Notes called for
redemption shall have been made available in accordance with the preceding
paragraph, the Notes called for redemption will cease to accrue interest and the
only right of the Holders of such Notes will be to receive payment of the
redemption price of, premium, if any, and, subject to the first proviso in
Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date.
If any Note surrendered for redemption shall not be so paid, interest will be
paid, from the Redemption Date until such redemption payment is made, on the
unpaid principal of the Note and any interest not paid on such unpaid principal,
in each case, at the rate and in the manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Issuer shall pay the principal of and interest (including all
Additional Interest as provided in the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Issuer shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
(a) The Issuer will file with the SEC all information, documents and
reports to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, whether or not the Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act; provided, however, that the Issuer
shall not be required to make any such filings prior to the date on which the
Issuer's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1999 would have been required to be filed, if, at the time such filings would
have been required to be made with the SEC, either (i) the Issuer shall have
provided to each Holder of the Notes the information that would have been
required to be filed or (ii) the Exchange Registration Statement (as such term
is defined in the Registration Rights Agreement) has been filed with the SEC but
has not yet been declared effective and copies of the Exchange Offer
Registration Statement and any amendments thereto (to the extent such
Registration Statement and/or amendments contain additional information not
disclosed in the Offering Memorandum that would have been the subject of a
filing required to be made under Section 13 or 15(d) of the Exchange Act) have
been provided to each Holder of the Notes, provided that any exhibits to the
Exchange Registration Statement (or any amendments thereto) need not be
delivered to any Holder of the Notes, but sufficient copies thereof shall be
furnished to the Trustee as reasonably requested to permit the Trustee to
deliver any such exhibits to any Holder of the Notes upon request. The Issuer
(at its own expense) will file with the Trustee within 15 days after the Issuer
files them with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Issuer files with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification
of this Indenture under the TIA, the Issuer shall also comply with the
provisions of TIA ss. 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuer's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) At the Issuer's expense, regardless of whether the Issuer is
required to furnish such reports and other information referred to in paragraph
(a) above to its equityholders pursuant to the Exchange Act, the Issuer shall
cause such reports and other information to be mailed to the Holders at their
addresses appearing in the register of Notes maintained by the Registrar within
15 days after they file them with the SEC.
(c) The Issuer shall, upon request, provide to any Holder of Notes or
any prospective transferee of any such Holder any information concerning the
Issuer (including financial statements) necessary in order to permit such Holder
to sell or transfer Notes in compliance with Rule 144A under the Securities Act;
provided, however, that the Issuer shall not be required to furnish such
information in connection with any request made on or after the date which is
two years from the later of (i) the date such Note (or any predecessor Note) was
acquired from the Issuer or (ii) the date such Note (or any predecessor Note)
was last acquired from an "affiliate" of the Issuer within the meaning of Rule
144 under the Securities Act.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead (as a defense or otherwise) or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Issuer from paying all or any portion of the principal of, premium, if any,
and/or interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Issuer hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 100 days after the
end of each fiscal year and on or before 55 days after the end of the first,
second and third quarters of each fiscal year, an Officers' Certificate (one of
the signers on behalf of the Issuer of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Issuer) stating that a review of the activities of the Issuer and its
Subsidiaries during such fiscal year or fiscal quarter, as the case may be, has
been made under the supervision of the signing Officers with a view to
determining whether the Issuer has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Issuer
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (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 they are taking or propose
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, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action the
Issuer is taking or propose to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.02 above shall be accompanied by a
written statement of the Issuer'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 which would lead them to believe that the Issuer has violated
any provisions of this Article 4 or Article 5 of this Indenture 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 for any failure to obtain knowledge of any such violation.
(c) The Issuer will, 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 Officers' Certificate specifying such Default or Event
of Default and what action the Issuer is taking or proposes to take with respect
thereto.
(d) The Issuer's fiscal year currently ends on December 31. The Issuer
will provide notice to the Trustee of any change in fiscal year.
Section 4.05. Taxes.
The Issuer shall, and shall cause each of its Subsidiaries to, pay
prior to delinquency all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate proceedings or where such
failure to effect such payment will not have a Material Adverse Effect.
Section 4.06. Limitation on Additional Indebtedness.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary of the Issuer to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness and including Disqualified Capital Stock);
provided that the Issuer or any of the Guarantors may incur Indebtedness
(including Acquired Indebtedness or Disqualified Capital Stock) if (1) after
giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Issuer's Consolidated Fixed Charge
Coverage Ratio is at least 2.0 to 1 and (2) no Default or Event of Default shall
have occurred and be continuing at the time or as a consequence of the
incurrence of such Indebtedness.
(b) Notwithstanding the foregoing, the Issuer and its Restricted
Subsidiaries may incur Permitted Indebtedness; provided that the Issuer will not
incur any Permitted Indebtedness that ranks junior in right of payment to the
Notes that has a maturity or mandatory sinking fund payment prior to the
maturity of the Notes.
(c) For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness or is entitled to be incurred pursuant to
paragraph (a) of this Section 4.06, the Issuer will, 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 the clauses in the definition of Permitted Indebtedness
or pursuant to paragraph (a) hereof. Accrual of interest and the accretion of
accreted value will not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.06.
Section 4.07. Limitation on Preferred Stock of
Restricted Subsidiaries.
The Issuer shall not permit any Restricted Subsidiary to issue any
Preferred Stock (except Preferred Stock to the Issuer or a Restricted
Subsidiary) or permit any Person (other than the Issuer or a Restricted
Subsidiary) to hold any such Preferred Stock unless the Issuer or such
Restricted Subsidiary would be entitled to incur or assume Indebtedness under
paragraph (a) of Section 4.06 hereof in an aggregate principal amount equal to
the aggregate liquidation value of the Preferred Stock to be issued.
Section 4.08. Limitation on Capital Stock of
Subsidiaries.
The Issuer shall not (i) sell, pledge, hypothecate or otherwise convey
or dispose of any Capital Stock of a Subsidiary (other than Liens under the
Senior Credit Facility or under the terms of any Designated Senior Indebtedness
and Liens not prohibited by Section 4.12) other than to the Issuer or another
Restricted Subsidiary or (ii) permit any of its Subsidiaries to issue any
Capital Stock (other than director's qualifying shares), other than (a) to the
Issuer or a Wholly-Owned Subsidiary of the Issuer or (b) to any other
shareholder of such Subsidiary (including to another Subsidiary) in an amount
not to exceed such shareholders' proportionate share of any dividend,
distribution or other issuance to all shareholders. The foregoing restrictions
shall not apply to an Asset Sale made in compliance with Section 4.10 hereof or
the issuance of Preferred Stock in compliance with Section 4.07 hereof.
Section 4.09. Limitation on Restricted Payments.
(a) The Issuer shall not make, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(ii) immediately after giving pro forma effect to such Restricted
Payment, the Issuer could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 4.06 hereof; and
(iii) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 50% of the cumulative Consolidated Net
Income of the Issuer subsequent to the Issue Date (or minus 100% of any
cumulative deficit in Consolidated Net Income during such period) plus (2)
100% of the aggregate Net Proceeds and the fair market value of securities
or other property received by the Issuer from the issue or sale, after the
Issue Date, of Capital Stock (other than Disqualified Capital Stock or
Capital Stock of the Issuer issued to any Subsidiary of the Issuer) of the
Issuer or any Indebtedness or other securities of the Issuer convertible
into or exercisable or exchangeable for Capital Stock (other than
Disqualified Capital Stock) of the Issuer which has been so converted or
exercised or exchanged, as the case may be, net of any amounts thereof
previously relied upon or to be relied upon to make any Permitted
Investments pursuant to clause (xv) of the definition thereof, plus (3)
without duplication of any amounts included in clauses (1) and (2) above,
100% of the aggregate net proceeds of any equity contribution received by
the Issuer (other than in return for Disqualified Capital Stock) from a
holder of the Issuer's Capital Stock, net of any amounts thereof previously
relied upon or to be relied upon to make any Permitted Investments pursuant
to clause (xv) of the definition thereof, plus (4) $7,500,000. For purposes
of determining under this clause (iii) the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its fair market value
determined, in good faith, by the Board of Directors of the Issuer.
(b) The provisions of this Section 4.09 shall not prohibit: (i) the
payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture; (ii) the repurchase, redemption or other
acquisition or retirement of any shares of Capital Stock of the Issuer or
Indebtedness subordinated to the Notes by conversion into, or by or in exchange
for, shares of Capital Stock (other than Disqualified Capital Stock), or out of,
the Net Proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Issuer) of other shares of Capital Stock of the Issuer (other
than Disqualified Capital Stock); (iii) the redemption or retirement of
Indebtedness of the Issuer subordinated to the Notes in exchange for, by
conversion into, or out of the Net Proceeds of, a substantially concurrent sale
or incurrence of Indebtedness (other than any Indebtedness owed to a Subsidiary)
of the Issuer that is Refinancing Indebtedness; (iv) the retirement of any
shares of Disqualified Capital Stock by conversion into, or by exchange for,
shares of Disqualified Capital Stock, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Issuer) of
other shares of Disqualified Capital Stock; (v) so long as no Default or Event
of Default shall have occurred and be continuing at the time of or immediately
after giving effect to such payment, the purchase, redemption or other
acquisition for value of shares of Capital Stock of the Issuer or, in the event
of the Asset Drop-Down, the Holding Company (other than Disqualified Capital
Stock) or options on such shares held by the Issuer's or its Subsidiaries' (or,
in the event of the Asset Drop-Down, the Holding Company's or its Subsidiaries)
officers, employees or directors or former officers, employees or directors (or
their estates or beneficiaries under their estates) upon the death, disability,
retirement or termination of employment of such current or former officers or
employees pursuant to the terms of an employee benefit plan or any other
agreement pursuant to which such shares of Capital Stock or options were issued
or pursuant to a severance, buy-sale or right of first refusal agreement with
such current or former officer or employee; provided that the aggregate cash
consideration paid, or distributions or payments made, pursuant to this clause
shall not exceed $3,000,000 in any fiscal year (provided, that the Issuer may
carry over and make in a subsequent fiscal year, in addition to the amounts
permitted for such fiscal year, the amount of such distributions permitted to
have been made, but not made, in any preceding fiscal year) or $15,000,000 in
the aggregate from and after the Issue Date, provided that the foregoing amounts
shall be increased by (A) the amount of any payments by officers, employees or
directors of the Holding Company, the Issuer or a Subsidiary thereof for the
purchase of Capital Stock of the Issuer (other than in connection with the
Recapitalization) or, in the event of the Asset Drop-Down, the Holding Company
except to the extent such payments consist of proceeds from loans by the Issuer
or a Subsidiary thereof and (B) the amount of any cash capital contributions to
the Issuer by THL or any Affiliate thereof used by the Issuer to purchase,
redeem or otherwise acquire for value shares of such capital stock; (vi) the
payment of THL Fees; (vii) so long as no Default or Event of Default shall have
occurred and be continuing, payments not to exceed $100,000 in the aggregate to
enable the Issuer to make payments to holders of its Capital Stock in lieu of
issuance of fractional shares of its Capital Stock; (viii) Restricted Payments
made pursuant to the Recapitalization Agreement; (ix) the Issuer or any
Restricted Subsidiary from purchasing all (but not less than all), excluding
directors' qualifying shares, of the Capital Stock or other ownership interests
in a Subsidiary of the Issuer which Capital Stock or other ownership interests
were not theretofore owned by the Issuer or a Subsidiary of the Issuer, such
that after giving effect to such purchase such Subsidiary becomes a Restricted
Subsidiary of the Issuer; (x) the payment of distributions (A) to the Equity
Investor solely for the purpose of enabling the Equity Investor to pay its
reasonable, ordinary course operating and administrative expenses and taxes in
any fiscal year will not exceed $250,000, and (B) in the event of the Asset
Drop-Down, to the Holding Company for the purpose of enabling the Holding
Company to pay its reasonable, ordinary course operating and administrative
expenses, the amount of which distributions pursuant to subclauses (A) and (B)
of this clause (x) in any fiscal year will not exceed $500,000; and (xi) in the
event of the Asset Drop-Down, the payment of distributions to the Holding
Company solely for the purpose of enabling the Holding Company to pay taxes
attributable to the operations of the New Operating Company and its Subsidiaries
to the extent such taxes are actually owed and the Holding Company is permitted
or required to make such payments.
(c) Notwithstanding the foregoing, (i) the amount of any payments made
in reliance on clause (i) and clause (v) of paragraph (b) above shall reduce the
amount otherwise available for Restricted Payments pursuant to paragraph (a)
above and (ii) in the event of the Asset Drop-Down, the amount of any payments
that could otherwise have been made in reliance on clauses (v), (vi), (vii), and
(x)(A) of paragraph (b) above may be paid for the respective purposes set forth
therein by the New Operating Company as dividends or distributions to the
Holding Company.
(d) Not later than the date of making any Restricted Payment, the
Issuer shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth in reasonable detail the basis
upon which the calculations required by this covenant were computed (including
without limitation the date, amount and nature of any purchase or contribution
referred to in clauses (a)(iii)(2) or (3) above), which calculations may be
based upon the Issuer's latest available financial statements, and, to the
extent that the absence of a Default or an Event of Default is a condition to
the making of such Restricted Payment, that no Default or Event of Default
exists and is continuing and no Default or Event of Default will occur
immediately after giving effect to any Restricted Payments.
Section 4.10. Limitation on Certain Asset Sales.
(a) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Issuer or such
Restricted Subsidiary, as the case may be, receives consideration at the time of
such sale or other disposition at least equal to the fair market value of the
equity interests, property or assets constituting such Asset Sale (as determined
in good faith by the Board of Directors of the Issuer, and evidenced by a Board
Resolution); (ii) not less than 75% of the consideration received by the Issuer
or its Subsidiaries, as the case may be, is in the form of cash or Temporary
Cash Investments; and (iii) the Asset Sale Proceeds received by the Issuer or
such Restricted Subsidiary are applied (a) first, to the extent the Issuer
elects, or is required, to prepay, repay or purchase debt or to reduce an unused
commitment to lend under any then existing Senior Indebtedness of the Issuer or
any Restricted Subsidiary within 365 days following the receipt of the Asset
Sale Proceeds from any Asset Sale, but only to the extent that any such
repayment shall result in a permanent reduction of the commitments thereunder in
an amount equal to the principal amount so repaid or be applied to secure Letter
of Credit Obligations; and (b) second, to the extent of the balance of Asset
Sale Proceeds after application as described above, to the extent the Issuer or
a Restricted Subsidiary elects, to an investment in assets (including Capital
Stock or other securities purchased in connection with the acquisition of
Capital Stock or property of another Person) used or useful in businesses
similar or ancillary to the business of the Issuer or such Restricted Subsidiary
as conducted at the time of such Asset Sale, provided that such investment
occurs or the Issuer or a Restricted Subsidiary enter into contractual
commitments to make such investment, subject only to customary conditions (other
than the obtaining of financing), on or prior to the 365th day following receipt
of such Asset Sale Proceeds (the "Reinvestment Date") and Asset Sale Proceeds
contractually committed are so applied within 365 days following the receipt of
such Asset Sale Proceeds.
Pending the final application of any such available Asset Sale
Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce
Indebtedness under a revolving credit facility or otherwise invest such
Available Asset Sale Proceeds in any manner not prohibited under this Indenture.
If, on the Reinvestment Date with respect to any Asset Sale, the
Available Asset Sale Proceeds exceed $10,000,000, the Issuer shall apply an
amount equal to such Available Asset Sale Proceeds to an offer to repurchase the
Notes, at a purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of repurchase (an "Excess
Proceeds Offer").
(b) If the Issuer is required to make an Excess Proceeds Offer, the
Issuer shall mail, within 30 days following the Reinvestment Date, a notice to
the Holders stating: (1) that such Holders have the right to require the Issuer
to apply the Available Asset Sale Proceeds to repurchase such Notes at a
purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase; (2) the purchase
date (the "Purchase Date"), which shall be no earlier than 30 days and not later
than 60 days from the date such notice is mailed; (3) the instructions,
determined by the Issuer, that each Holder must follow in order to have such
Notes repurchased; and (4) the calculations used in determining the amount of
Available Asset Sale Proceeds to be applied to the repurchase of such Notes. The
Excess Proceeds Offer shall remain open for a period of 20 Business Days
following its commencement (the "Offer Period"). The notice, which shall govern
the terms of the Excess Proceeds Offer, in addition to the foregoing, shall also
state:
(1) that any Note not tendered or accepted for payment will continue
to accrue interest;
(2) that any Note accepted for payment pursuant to the Excess Proceeds
Offer shall cease to accrue interest on and after the Purchase Date and the
deposit of the purchase price with the Trustee;
(3) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Issuer, a depositary, if appointed by the Issuer, or a
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Purchase Date;
(4) that Holders will be entitled to withdraw their election if the
Issuer, depositary or Paying Agent, as the case may be, receives, not later
than the expiration of the Offer Period, a 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 its election to have the Note purchased;
(5) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Available Asset Sale Proceeds, the Issuer shall select
the Notes to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Issuer so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(6) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered.
On or before the Purchase Date, the Issuer shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Notes
or portions thereof tendered pursuant to the Excess Proceeds Offer, deposit with
the Paying Agent U.S. legal tender sufficient to pay the purchase price plus
accrued interest, if any, on the Notes to be purchased and deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Issuer in accordance with the terms of this
Section 4.10. The Paying Agent shall promptly (but in any case not later than 5
days after the Purchase Date) mail or deliver to each tendering Holder from the
amount deposited by the Issuer an amount equal to the purchase price of the Note
tendered by such Holder and accepted by the Issuer for purchase, and the Issuer
shall promptly issue a new Note, the Guarantors shall endorse the guarantee
thereon and the Trustee shall authenticate and mail or make available for
delivery 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 Issuer to the Holder thereof.
If an Excess Proceeds Offer is not fully subscribed, the Issuer may
retain that portion of the Available Asset Sale Proceeds not required to
repurchase Notes and use such portion for general corporate purposes, and such
retained portion shall not be considered in the calculation of "Available Asset
Sale Proceeds" with respect to any subsequent offer to purchase Notes.
Section 4.11. Limitation on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate (including entities in which the Issuer or any of its Restricted
Subsidiaries own a minority interest)(an "Affiliate Transaction") or extend,
renew, waive or otherwise modify the terms of any Affiliate Transaction entered
into prior to the Issue Date if such extension, renewal, replacement, waiver or
other modification is more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date unless (i)
such Affiliate Transaction is between or among the Issuer and/or its Restricted
Subsidiaries and/or, in the event of the Asset Drop-Down, the Holding Company;
or (ii) the terms of such Affiliate Transaction are fair and reasonable to the
Issuer or such Restricted Subsidiary, as the case may be, and the terms of such
Affiliate Transaction are at least as favorable as the terms which could be
obtained by the Issuer or such Restricted Subsidiary, as the case may be, in a
comparable transaction made on an arm's-length basis between unaffiliated
parties. In any Affiliate Transaction involving an amount or having a value in
excess of $2,000,000 which is not permitted under clause (i) above, the Issuer
must obtain a resolution of the Board of Directors of the Issuer certifying that
such Affiliate Transaction complies with clause (ii) above. In any Affiliate
Transaction with a value in excess of $10,000,000 which is not permitted under
clause (i) above (other than any sale by the Issuer of its Capital Stock that is
not Disqualified Capital Stock), the Issuer must obtain a written opinion as to
the fairness of such a transaction from an independent investment banking firm.
(b) The limitations set forth in Section 4.11(a) shall not apply to
(i) any Restricted Payment that is not prohibited by Section 4.09 hereof or
Permitted Investment permitted by Section 4.13 hereof, (ii) any transaction
pursuant to an agreement, arrangement or understanding existing on the Issue
Date, (iii) any transaction, compensation or agreement approved by the Board of
Directors of the Issuer, with an officer or director of or consultant to the
Issuer or of any Subsidiary in his or her capacity as officer or director
entered into in the ordinary course of business, (iv) transactions permitted by
Section 5.01 hereof, (v) any transaction (a) between the Issuer and any THL
Group Member solely in its capacity as a holder or buyer of the Issuer's Capital
Stock or (b) in the event of the Asset Drop-Down, between the New Operating
Company and the Holding Company solely in its capacity as a holder or buyer of
the New Operating Company's Capital Stock, provided that any such transaction
described in this clause (v) is not otherwise prohibited by this Indenture, or
(vi) in the event of the Asset Drop-Down, any commercially reasonable
transaction between the New Operating Company and the Holding Company solely in
its capacity as a holder or buyer of the New Operating Company's Indebtedness
provided that any such transaction is not otherwise prohibited by this
Indenture.
Section 4.12. Limitations on Liens.
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any property
or asset of the Issuer or any Restricted Subsidiary or any shares of stock or
debt of any Restricted Subsidiary which owns property or assets, now owned or
hereafter acquired, which secures Indebtedness pari passu with or subordinated
to the Notes unless (i) if such Lien secures Indebtedness which is pari passu
with the Notes, then the Notes are secured on an equal and ratable basis with
the obligations so secured until such time as such obligation is no longer
secured by a Lien or (ii) if such Lien secures Indebtedness which is
subordinated to the Notes, any such Lien shall be subordinated to the Lien
granted to the Holders of the Notes in the same collateral as that securing such
Lien to the same extent as such subordinated Indebtedness is subordinated to the
Notes.
Section 4.13. Limitations on Investments.
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, make any Investment other than (i) a Permitted Investment or
(ii) an Investment that is made as a Restricted Payment in compliance with
Section 4.09 hereof, after the Issue Date.
Section 4.14. Limitation on Creation of Subsidiaries.
The Issuer shall not create or acquire, nor permit any of its
Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary that is acquired or created in connection with an
acquisition by the Issuer or (ii) an Unrestricted Subsidiary; provided, however,
that each Restricted Subsidiary acquired or created pursuant to clause (i) shall
at the time it has either assets or stockholder's equity in excess of $200,000
execute a guarantee in the form attached as Exhibit G to this Indenture,
pursuant to which such Restricted Subsidiary shall become a Guarantor which
Guarantee shall be subordinated to such Restricted Subsidiary's guarantee of or
pledge to secure any other Indebtedness that constitutes Senior Indebtedness to
the same extent as Notes are subordinated to Senior Indebtedness.
Notwithstanding the foregoing, any such Guarantee shall provide by its terms
that it shall be automatically and unconditionally released and discharged upon
certain mergers, consolidations, sales and other dispositions (including,
without limitation, by foreclosure) in accordance with this Indenture.
Section 4.15. Limitation on Other Senior Subordinated
Debt.
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (other than the Notes and the Guarantees, as the case may be) that
is both (i) subordinate in right of payment to any Senior Indebtedness of the
Issuer or its Restricted Subsidiaries, as the case may be, and (ii) senior in
right of payment to the Notes and the Guarantees, as the case may be. For
purposes of this Section 4.15, Indebtedness is deemed to be senior in right of
payment to the Notes and the Guarantees, as the case may be, if it is not
explicitly subordinate in right of payment to Senior Indebtedness at least to
the same extent as the Notes and the Guarantees, as the case may be, are
subordinate to Senior Indebtedness.
Section 4.16. Limitation on Sale and Lease-Back
Transactions.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least equal to the fair
market value of the property sold, as determined, in good faith, by the Board of
Directors of the Issuer and (ii) the Issuer or such Restricted Subsidiary, as
the case may be, could incur the Attributable Indebtedness in respect of such
Sale and Lease-Back Transaction in compliance with Section 4.06.
Section 4.17. Payments for Consent.
Neither the Issuer nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all Holders of the Notes which so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
Section 4.18. Legal Existence.
Subject to Article 5 hereof, the Issuer shall do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Issuer any such Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuer and its Restricted Subsidiaries; provided, however, that the Issuer
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted Subsidiaries
if the Board of Directors of the Issuer shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer and
its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
Section 4.19. Change of Control.
(a) In the event of a Change of Control, the Issuer shall notify the
Trustee in writing of such occurrence and shall make an offer to purchase (the
"Change of Control Offer") the outstanding Notes at a purchase price equal to
101% of the principal amount thereof together with any accrued and unpaid
interest thereon to the Change of Control Payment Date (as hereinafter defined)
(such applicable purchase price being hereinafter referred to as the "Change of
Control Purchase Price") in accordance with the procedures set forth in this
Section 4.19.
If the Senior Credit Facility is in effect, or any amounts are owing
thereunder or in respect thereof, at the time of the occurrence of a Change of
Control, prior to the mailing of the notice to Holders described in paragraph
(b) below, but in any event within 30 days following the first date on which the
Issuer has knowledge of any Change of Control, the Issuer covenants to (i) repay
in full all obligations under or in respect of the Senior Credit Facility or
offer to repay in full all obligations under or in respect of the Senior Credit
Facility and repay the obligations under or in respect of the Senior Credit
Facility of each lender who has accepted such offer or (ii) obtain the requisite
consent under the Senior Credit Facility to permit the repurchase of the Notes
pursuant to this Section 4.19. The Issuer must first comply with the covenant
described in the preceding sentence before it shall be required to purchase
Notes in the event of a Change of Control; provided that the Issuer's failure to
comply with the covenant described in the preceding sentence constitutes an
Event of Default described in clause (3) of Section 6.01 hereof if not cured
within 60 days after the notice required by such clause.
(b) Within 30 days prior to the expiration date stated in such Notice
of any Change of Control, the Issuer shall send by first-class mail, postage
prepaid, to the Trustee and to each Holder of the Notes, at the address
appearing in the register maintained by the Registrar of the Notes, a notice
stating:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.19 and that all Notes validly tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 Business Days from the date such
notice is mailed (the "Change of Control Payment Date"));
(iii) that any Note not timely tendered in accordance with such notice
will remain outstanding and continue to accrue interest;
(iv) that, unless the Issuer defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that Holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the Business Day preceding
the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the Business
Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for purchase, and a statement that
such Holder is withdrawing his election to have such Notes purchased;
(vii) 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, provided that each Note purchased and each such new
Note issued shall be in an original principal amount in denominations of
$1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
On or before the Change of Control Payment Date, the Issuer shall, to
the extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Issuer. The Paying Agent shall promptly mail to each
Holder of Notes so accepted from the amount deposited by the Issuer payment in
an amount equal to the purchase price for such Notes, and the Issuer shall
execute and issue, the Guarantors shall endorse the Guarantee and the Trustee
shall promptly authenticate and mail to such Holder, a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered; provided
that each such new Note shall be issued in an original principal amount in
denominations of $1,000 and integral multiples thereof.
(c) (i) If the Issuer or any Subsidiary thereof has issued any
outstanding (A) Indebtedness that is subordinated in right of payment to the
Notes or (B) Preferred Stock, and such Issuer or Subsidiary is required to make
a change of control offer or to make a distribution with respect to such
subordinated Indebtedness or Preferred Stock in the event of a change of
control, the Issuer shall not consummate any such offer or distribution with
respect to such subordinated Indebtedness or Preferred Stock until such time as
the Issuer shall have paid the Change of Control Purchase Price in full to the
Holders of Notes that have accepted the Issuer's Change of Control Offer and
shall otherwise have consummated the Change of Control Offer made to Holders of
the Notes and (ii) the Issuer will not issue Indebtedness that is subordinated
in right of payment to the Notes or Preferred Stock with change of control
provisions requiring the payment of such Indebtedness or Preferred Stock prior
to the payment of the Notes in the event of a Change in Control under this
Indenture.
In the event that a Change of Control occurs and the Holders of Notes
exercise their right to require the Issuer to purchase Notes, if such purchase
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at that time, the Issuer will comply with the requirements of Rule 14e-1 as then
in effect with respect to such repurchase.
Section 4.20. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency where Notes may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuer 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 as set forth in Section
12.02.
The Issuer may also 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 designations. The
Issuer shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Issuer hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Issuer.
Section 4.21. Maintenance of Properties; Insurance;
Books and Records; Compliance with Law.
(a) The Issuer shall, and shall cause each of its Restricted
Subsidiaries to, at all times cause all material properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
(b) The Issuer shall, and shall cause each of their Restricted
Subsidiaries to, maintain insurance (which may include self-insurance) in such
amounts and covering such risks as are usually and customarily carried with
respect to similar facilities according to their respective locations.
(c) The Issuer shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of the Issuer
and each Subsidiary of the Issuer, in accordance with GAAP consistently applied
to the Issuer and their Subsidiaries taken as a whole.
(d) The Issuer shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances or government rules and regulations
to which they are subject, non-compliance with which would materially adversely
affect the business, earnings, assets or financial condition of the Issuer and
its Subsidiaries taken as a whole.
Section 4.22. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries.
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Issuer to (a)(i) pay dividends or make any other
distributions to the Issuer or any Restricted Subsidiary of the Issuer (A) on
its Capital Stock or (B) with respect to any other interest or participation in,
or measured by, its profits or (ii) repay any Indebtedness or any other
obligation owed to the Issuer or any Restricted Subsidiary of the Issuer, (b)
make loans or advances or capital contributions to the Issuer or any of its
Restricted Subsidiaries or (c) transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) encumbrances or restrictions
existing on the Issue Date to the extent and in the manner such encumbrances and
restrictions are in effect on the Issue Date or are no more restrictive in any
material respect (including without limitation pursuant to the Senior Credit
Facility), (ii) the Indenture, the Notes and the Guarantees, (iii) applicable
law, (iv) any instrument governing Acquired Indebtedness, 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
(including any Subsidiary of the Person), so acquired, (v) any agreement or
instrument governing Indebtedness (whether or not outstanding) of Foreign
Subsidiaries, (vi) customary non-assignment provisions in leases, licenses or
other agreements entered in the ordinary course of business and consistent with
past practices, (vii) Refinancing Indebtedness; provided that such payment
restrictions are no more restrictive in any material respect than those
contained in the agreements governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, (viii) customary
restrictions in security agreements or mortgages or similar agreements securing
Indebtedness of the Issuer or a Restricted Subsidiary to the extent such
restrictions restrict the transfer of the property subject to such security
agreements and mortgages or (ix) customary restrictions with respect to a
Restricted Subsidiary of the Issuer pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary.
Section 4.23. Further Assurance to the Trustee.
The Issuer shall, upon the reasonable request of the Trustee, execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets.
(a) The Issuer shall not, nor shall it permit any Guarantor to,
consolidate with, merge with or into, or transfer all or substantially all of
its assets (as an entirety or substantially as an entirety in one transaction or
a series of related transactions) to, any Person unless (in the case of the
Issuer or any Guarantor): (i) the Issuer or such Guarantor, as the case may be,
shall be the continuing Person, or the Person (if other than the Issuer or such
Guarantor) formed by such consolidation or into which the Issuer or such
Guarantor, as the case may be, is merged or to which the properties and assets
of the Issuer or such Guarantor, as the case may be, are transferred shall be a
corporation, limited liability company or a limited partnership organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume, in writing by a supplemental
indenture, executed and delivered to the Trustee, in form and substance
satisfactory to the Trustee, all of the obligations of the Issuer or such
Guarantor, as the case may be, under the Notes and this Indenture or Guarantee,
as applicable, and the obligations under this Indenture shall remain in full
force and effect; provided that at any time the Issuer or its successor is a
limited partnership or limited liability company there shall be a co-issuer of
the Notes that is a corporation; (ii) immediately before and immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and (iii) unless the merger or consolidation is
with, or the transfer of all or substantially all its assets is to a
Wholly-Owned Subsidiary, immediately after giving effect to such transaction on
a pro forma basis the Issuer or such Person could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.06 hereof.
Nothing in this Section 5.01 will prohibit the consolidation, merger
or transfer of all or substantially all the assets of any Guarantor that is
otherwise permitted by and conducted in accordance with the other applicable
sections of this Indenture. In connection with any consolidation, merger or
transfer of assets contemplated by this Section 5.01, the Issuer shall deliver,
or cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and the supplemental
indenture in respect thereto comply with this Section 5.01 and that all
conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Issuer or any Guarantor in accordance
with Section 5.01 above, the successor corporation formed by such consolidation
or into which the Issuer is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer or such Guarantor under this Indenture with the same effect as if
such successor corporation had been named as the Issuer or such Guarantor
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(1) there is a default in the payment of any principal of, or premium,
if any, on the Notes when the same becomes due and payable whether at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by the provisions of Article 11 hereof;
(2) there is a default in the payment of any interest on any Note when
the same becomes due and payable and the Default continues for a period of
30 days, whether or not such payment is prohibited by the provisions of
Article 11 hereof;
(3) the Issuer or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for 60
days after written notice from the Trustee or the Holders of not less than
25% in the aggregate principal amount of the Notes then outstanding;
(4) there is a default in the payment at final maturity of principal
in an aggregate amount of $10,000,000 or more with respect to any
Indebtedness of the Issuer or any Restricted Subsidiary thereof, or there
is an acceleration of any such Indebtedness aggregating $10,000,000 or more
which default shall not be cured, waived or postponed pursuant to an
agreement with the holders of such Indebtedness within 60 days after
written notice by the Trustee or any Holder, or which acceleration shall
not be rescinded or annulled within 20 days after written notice to the
Issuer of such Default by the Trustee or any Holder;
(5) the entry of a final judgment or judgments which can no longer be
appealed or stayed for the payment of money in excess of $10,000,000 (net
of amounts covered by insurance for which coverage is not being challenged
or denied) against the Issuer or any Restricted Subsidiary thereof and such
judgment remains undischarged, paid or otherwise satisfied, for a period of
60 consecutive days during which a stay of enforcement of such judgment
shall not be in effect;
(6) the Issuer or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors,
or
(E) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Issuer or any Restricted Subsidiary
in an involuntary case,
(B) appoints a Custodian of the Issuer or any Restricted
Subsidiary or for all or substantially all of the property of either
of the Issuer or any Restricted Subsidiary, or
(C) orders the liquidation of the Issuer or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect
for 60 days; or
(8) any of the Guarantees ceases to be in full force and effect or any
of the Guarantees is declared to be null and void and unenforceable or any
of the Guarantees is found to be invalid or any of the Guarantors denies in
writing its liability under its Guarantee (other than by reason of release
of a Guarantor in accordance with the terms of this Indenture).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
The Trustee may withhold notice to the Holders of the Notes of any
Default (except in payment of principal or premium, if any, or interest on the
Notes) if the Trustee considers it to be in the best interest of the Holders of
the Notes to do so. The Trustee shall not be charged with knowledge of any
Default, Event of Default, Change of Control or Asset Sale in payment of
Additional Interest unless written notice thereof shall have been given to a
Responsible Officer at the corporate trust office of the Trustee by the Issuer
or any other Person.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising under
Section 6.01(6) or (7) with respect to the Issuer) occurs and is continuing, the
Trustee by notice to the Issuer, or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding may by written notice
to the Issuer and the Trustee declare to be immediately due and payable the
entire principal amount of all the Notes then outstanding plus accrued but
unpaid interest to the date of acceleration and (i) such amounts shall become
immediately due and payable or (ii) if there are any amounts outstanding or
owing under or in respect of the Senior Credit Facility or any commitments
remain in effect under the Senior Credit Facility, such amounts shall become due
and payable upon the first to occur of an acceleration of amounts outstanding
under or in respect of the Senior Credit Facility or five Business Days after
receipt by the Issuer and the Representative of notice of the acceleration of
the Notes; provided, however, that after such acceleration but before a judgment
or decree based on such acceleration is obtained by the Trustee, the Holders of
a majority in aggregate principal amount of the outstanding Notes may rescind
and annul such acceleration and its consequences if all existing Events of
Default, other than the nonpayment of accelerated principal, premium, if any, or
interest that has become due solely because of the acceleration, have been cured
or waived and if the rescission would not conflict with any judgment or decree.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default specified in Section 6.01(6) or
(7) with respect to the Issuer occurs, such principal, premium, if any, and
interest amount with respect to all of the Notes shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
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 Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults and Events of
Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another Noteholder
not taking part in such direction, and the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or if the
Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and if requested provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer, and, if requested provision, of
indemnity; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if any, and
interest of the Note (including Additional Interest) on or after the respective
due dates expressed in the Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Issuer or the Guarantors (or any other obligor on the Notes) for the whole
amount of unpaid principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate set forth in the Notes, and such further amounts 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 may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Issuer or the
Guarantors (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same
after deduction of its charges and expenses to the extent that any such charges
and expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, 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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section
7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid
on the Notes for principal, premium, if any, and interest
(including Additional Interest, if any) as to each,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes; and
THIRD: to the Issuer or, to the extent the Trustee
collects any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders 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 Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
Section 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuer, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the same circumstances in the conduct
of such Person's own affairs.
(b) Except during the continuance of a Default or an Event of Default
of which a Responsible Officer of the Trustee has actual knowledge:
(1) The Trustee undertakes to perform such duties and only such duties
that are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02, 6.05 or 6.06 hereof.
(d) Whether or not therein expressly so provided, paragraphs (a), (b),
(c) and (e) of this Section 7.01 shall govern every provision of this Indenture
that in any way relates to the Trustee.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuer or any
Guarantor.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its rights, powers or duties or to take or omit to
take any action under this Indenture or take any action at the request or
direction of Holders if it shall have reasonable grounds for believing that
repayment of such funds is not assured to it or it does not receive an
indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which may be incurred by it in connection
with such performance.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely and shall be protected in acting or
refraining from acting on any document reasonably 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.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed by
it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
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 make loans to, accept deposits from, perform
services for or otherwise deal with either of the Issuer or any Guarantor, or
any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, shall
be 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 or any Guarantee,
it shall not be accountable for the Issuer's or any Guarantor's use of the
proceeds from the sale of Notes or any money paid to the Issuer or any Guarantor
pursuant to the terms of this Indenture and it shall not be responsible for any
statement in the Notes, Guarantee or 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
known to the Trustee, the Trustee shall mail to each Noteholder notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of the principal of, or 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 determine(s) that withholding the notice is in the
interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after May 15 of any
year, commencing May 15, 2000, the Trustee shall mail to each Noteholder a brief
report dated as of such May 15 that complies with TIA ss. 313(a). The Trustee
also shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA ss. 313(c) and TIA ss. 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all registered Holders of Notes, as the names and addresses of
such Holders appear on the Registrar's books; and
(2) to such Holder of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose.
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC and each stock exchange on which the Notes are listed. The
Issuer shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
The Issuer and the Guarantors shall pay to the Trustee and Agents from
time to time such compensation as shall be agreed in writing between the Issuer
and the Trustee for its services hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Issuer and the Guarantors shall reimburse the Trustee and
Agents upon request for all reasonable disbursements, expenses and advances
incurred or made by it in connection with its duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Issuer and the Guarantors shall indemnify each of the Trustee and
any predecessor Trustee for, and hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including without limitation taxes
(other than taxes based on the income of the Trustee or such Agent) and
reasonable attorneys' fees and expenses incurred by each of them in connection
with the acceptance or performance of its duties under this Indenture including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder (including, without limitation, settlement costs). The Trustee
or Agent shall notify the Issuer in writing promptly of any claim asserted
against the Trustee or Agent for which it may seek indemnity. However, the
failure by the Trustee or Agent to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder except to the extent the Issuer are
prejudiced thereby.
Notwithstanding the foregoing, the Issuer and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by the Trustee through its negligence or bad faith. To secure
the payment obligations of the Issuer and the Guarantors 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 such money or property held in trust to pay
principal of and interest on particular Notes. The obligations of the Issuer and
the Guarantors under this Section 7.07 to compensate, reimburse and indemnify
the Trustee, Agents and each predecessor Trustee and to pay or reimburse the
Trustee, Agents and each predecessor Trustee for expenses, disbursements and
advances shall be joint and several liabilities of the Issuer and each of the
Guarantors and shall survive the satisfaction, discharge and termination of this
Indenture, including any termination or rejection hereof under any bankruptcy
law or the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Issuer and the Guarantors
in writing. The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by notifying the removed Trustee in writing and may
appoint a successor Trustee with the Issuer's written consent which consent
shall not be unreasonably withheld. The Issuer may remove the Trustee at their
election if:
(1) the Trustee fails to comply with Section 7.10
hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property;
(4) the Trustee otherwise becomes incapable of acting; or
(5) a successor corporation becomes successor Trustee pursuant to
Section 7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify the holders of such
event and promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of a majority in principal amount of the outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder 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 Issuer. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Issuer obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation,
Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $150,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b), including the provision in ss. 310(b)(1).
Section 7.11. Preferential Collection of Claims Against
Issuer.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311 (b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
Section 7.12. Paying Agents.
The Issuer shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal of, or premium, if any, or interest on, the Notes (whether such
sums have been paid to it by the Issuer or by any obligor on the Notes) in
trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Issuer (or by any obligor on the Notes)
in the payment of any installment of the principal of, premium, if any, or
interest on, the Notes when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Issuer and the Guarantors, when authorized by a Board Resolution
of each of them, and the Trustee may amend, waive or supplement this Indenture
or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to consummate the Asset Drop-Down;
(4) to comply with any requirements of the SEC under the TIA;
(5) to cure any ambiguity, defect or inconsistency;
(6) to make any other change that does not adversely affect the rights
of any Noteholders hereunder; or
(7) to add a Guarantor.
The Trustee is hereby authorized to join with the Issuer and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Issuer (when authorized by a Board Resolution), the Guarantors
(each when authorized by a Board Resolution) and the Trustee may modify or
supplement this Indenture or the Notes with the written consent of the Holders
of not less than a majority in aggregate principal amount of the outstanding
Notes. The Holders of not less than a majority in aggregate principal amount of
the outstanding Notes may waive compliance in a particular instance by the
Issuer or Guarantors with any provision of this Indenture or the Notes. Subject
to Section 8.04, without the consent of each Noteholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of interest on
any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note;
(4) waive a default in the payment of the principal of, interest on,
or redemption payment with respect to any Note;
(5) make any Note payable in money other than that stated in the Note
or change the place of payment from New York, New York;
(6) make any change in provisions of the Indenture protecting the
right of each holder of Notes to receive payment of principal of and
interest on such Note on or after the due date thereof or to bring suit to
enforce such payment, or permitting holders of a majority in principal
amount of Notes to waive Defaults or Events of Default;
(7) amend, change or modify in any material respect the obligation of
the Issuer to make and consummate a Change of Control Offer in the event of
a Change of Control or make and consummate an Excess Proceeds Offer with
respect to any Asset Sale that has been consummated or modify any of the
provisions or definitions with respect thereto;
(8) affect the ranking of the Notes or the Guarantees in a manner
adverse to the holders;
(9) change any provision of this Indenture relating to the redemption
of Notes;
(10) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms of
this Indenture.
After an amendment, supplement or waiver under this Section 8.02 or
Section 8.01 becomes effective, the Issuer shall mail to the Holders a notice
briefly describing the amendment, supplement or waiver.
Upon the written request of the Issuer, accompanied by Board
Resolutions authorizing the execution of any such supplemental indenture by the
Issuer and the Guarantors, and upon the receipt by the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Noteholders as
aforesaid and upon receipt by the Trustee of the documents described in Section
8.06 hereof, the Trustee shall join with the Issuer and the Guarantors in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture, in
which case the Trustee may, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
written notice of revocation before the date the amendment, supplement, waiver
or other action becomes effective.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (8) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee (in accordance with the specific written direction of the Issuer)
shall request the Holder of the Note (in accordance with the specific written
direction of the Issuer) to deliver it to the Trustee. In such case, the Trustee
shall place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment supplement or waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture and
is a legal, valid and binding obligation of the Issuer and the Guarantors,
enforceable against the Issuer and the Guarantors in accordance with its terms
(subject to customary exceptions).
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Issuer and the Guarantors may terminate their obligations under
the Notes, the Guarantees and this Indenture, except the obligations referred to
in the last paragraph of this Section 9.01, if there shall have been canceled by
the Trustee or delivered to the Trustee for cancellation all Notes theretofore
authenticated and delivered (other than any Notes that are asserted to have been
destroyed, lost or stolen and that shall have been replaced as provided in
Section 2.08 hereof) and the Issuer have paid all sums payable by them hereunder
or deposited all required sums with the Trustee.
After such delivery the Trustee upon Issuer request shall acknowledge
in writing the discharge of the Issuer' and the Guarantors' obligations under
the Notes, the Guarantees and this Indenture except for those surviving
obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and Guarantors in Sections 7.07, 9.05 and 9.06 hereof
shall survive.
Section 9.02. Legal Defeasance.
The Issuer may at its option, by Board Resolution of the Board of
Directors of the Issuer, be discharged from their obligations with respect to
the Notes and the Guarantors discharged from their obligations under the
Guarantees on the date the conditions set forth in Section 9.04 below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by the Notes and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Issuer, shall, subject to
Section 9.06 hereof, execute instruments in form and substance reasonably
satisfactory to the Trustee and Issuer acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive solely from
the trust funds described in Section 9.04 hereof and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (B) the Issuer's obligations
with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09 and 4.20 hereof, (C) the rights, powers, trusts, duties, and immunities of
the Trustee hereunder (including claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof) and (D) this Article 9. Subject to compliance
with this Article 9, the Issuer may exercise its option under this Section 9.02
with respect to the Notes notwithstanding the prior exercise of its option under
Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Issuer, pursuant to a Board Resolution of the
Board of Directors of the Issuer, the Issuer and the Guarantors shall be
released from their respective obligations under Sections 4.02 through 4.19,
Sections 4.21 through 4.22 and Sections 4.24 through 4.25 hereof, inclusive, and
clauses (a)(ii) and (iii) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 9.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Issuer and the Guarantors may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 9.04. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Notes:
(1) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, premium, if any, and
accrued interest on the outstanding Notes at the maturity date of such
principal, premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest selected in
accordance with the terms of this Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit, or shall have
occurred and be continuing at any time during the period ending on the 91st
day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any
Bankruptcy Law applicable to the Issuer in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Issuer;
(4) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under any other agreement or
instrument to which the Issuer is a party or by which it is bound;
(5) the Issuer shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of
1940, as amended;
(6) in the case of an election under Section 9.02 above, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change
in any applicable Federal income tax law with the effect that, and such
opinion shall confirm that, the Holders of the outstanding Notes or persons
in their positions will not recognize income, gain or loss for Federal
income tax purposes solely as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(8) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Issuer with the intent of defeating, hindering, delaying or defrauding any
creditors of the Issuer or others;
(9) the Issuer shall have paid or duly provided for payment under
terms mutually satisfactory to the Issuer and the Trustee all amounts then
due to the Trustee pursuant to Section 7.07 hereof; and
(10) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (to the extent matters of law are
involved), each stating that (x) all conditions precedent herein provided
for relating to either the legal defeasance under paragraph 9.02 above or
the covenant defeasance under paragraph 9.03 above, as the case may be,
have been complied with and (y) if any other Indebtedness of the Issuer
shall then be outstanding or committed, such legal defeasance or covenant
defeasance will not violate the provisions of the agreements or instruments
evidencing such Indebtedness.
Section 9.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer and the Guarantors shall (on a joint and several basis) pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon an Issuer
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, 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 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 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 Issuer's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided, however, that if
the Issuer or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Issuer or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Issuer, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the
Issuer upon an Issuer Request (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Issuer or the Guarantors in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Issuer (or, if
appropriate, the Guarantors) upon an Issuer Request, or if such moneys are then
held by the Issuer or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Issuer and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
however, that the Trustee or any such Paying Agent, before being required to
make any such repayment, may, at the expense of the Issuer and the Guarantors,
either mail to each Noteholder affected, at the address shown in the register of
the Notes maintained by the Registrar pursuant to Section 2.04 hereof, or cause
to be published once a week for two successive weeks, in a newspaper published
in the English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a 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 mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Issuer. After payment to the
Issuer or the Guarantors or the release of any money held in trust by the Issuer
or any Guarantors, as the case may be, Noteholders entitled to the money must
look only to the Issuer and the Guarantors for payment as general creditors
unless applicable abandoned property law designates another person.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor, by
execution of the Guarantee, will jointly and severally unconditionally guarantee
to each Holder and to the Trustee, (i) the due and punctual payment of the
principal of, and premium, if any, and interest on each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal of,
and premium, if any, and interest on the Notes, to the extent lawful, and the
due and punctual performance of all other Obligations of the Issuer to the
Holders or the Trustee (including without limitation amounts due the Trustee
under Section 7.07) all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor, by
execution of the Guarantee, will agree that its obligations thereunder and
hereunder shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such Note
or this Indenture, any failure to enforce the provisions of any such Note or
this Indenture, any waiver, modification or indulgence granted to the Issuer
with respect thereto by the Holder of such Note or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or such Guarantor.
Each Guarantor, by execution of the Guarantee, will waive diligence,
presentment, demand for payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to any such Note or the
Indebtedness evidenced thereby and all demands whatsoever, and will covenant
that this Guarantee will not be discharged as to any such Note except by payment
in full of the principal thereof, premium if any, and interest thereon and as
provided in Section 9.01 hereof. Each Guarantor, by execution of the Guarantee,
will further agree that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (ii) in the event of any 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 each Guarantor
for the purpose of this Guarantee.
Section 10.02. Execution and Delivery of Guarantees.
A Guarantee shall be executed on behalf of a Guarantor by the manual
or facsimile signature of an Officer of such Guarantor.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office, such Guarantee shall be valid nevertheless.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees of Senior Indebtedness)
and after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other Guarantor
under its Guarantee or pursuant to its contribution obligations under this
Indenture, result in the obligations of such Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a Guarantee
shall be entitled to a contribution from each other Guarantor in a pro rata
amount based on the Adjusted Net Assets of each Guarantor.
Section 10.04. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all or substantially all of its assets or
the Issuer and its Restricted Subsidiaries have sold at least 80% of the
Capital Stock of the Guarantor owned by them, in each case in a transaction
in compliance with Sections 4.10 and 5.01 hereof; provided that in the
event of a sale of less than all of the Capital Stock of a Guarantor, the
release hereunder shall not be effective unless and until such Guarantor is
similarly released from its guarantee under the Senior Credit Facility; or
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Issuer or another
Guarantor in a transaction in compliance with Section 5.01 hereof;
and in each such case, such Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 10.05. Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness.
Each Guarantor, by execution of the Guarantee, will covenant and
agree, and each Holder of Notes, by its acceptance thereof, likewise covenants
and agrees, that to the extent and in the manner hereinafter set forth in this
Article 10, the Indebtedness represented by the Guarantee and the payment of the
principal of, premium, if any, interest, indemnification payments, expenses and
other amounts on the Notes pursuant to the Guarantee by such Guarantor and under
or in respect of the Financing Documents are hereby expressly made subordinate
and subject in right of payment as provided in this Article 10 to the prior
indefeasible payment and satisfaction in full (as hereinafter defined) of all
Guarantor Senior Indebtedness of such Guarantor.
This Section 10.05 and the following Sections 10.06 through 10.10
shall constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of or continue to hold Guarantor Senior Indebtedness
of any Guarantor; and such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness of each Guarantor; and such holders are made
obligees hereunder and they or each of them may enforce such provisions.
For all purposes of this Article X, all Guarantor Senior Indebtedness
now or hereafter existing and all other Obligations relating thereto shall not
be deemed to have been paid in full unless and until all of the Obligations of
any holder thereof shall have been indefeasibly paid in full in cash (including,
without limitation, all Accrued Bankruptcy Interest) and all of the commitments
thereunder shall have been terminated and, in the case of any Letter of Credit
Obligations, such Obligations shall have been fully drawn and paid in full in
cash or 100% cash collateralized.
A distribution may consist of cash, securities or other property, by
set-off or otherwise.
Section 10.06. Payment Over of Proceeds upon Dissolution, etc., of a
Guarantor.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, arrangement, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (c) any general assignment for the benefit of creditors or any other
marshalling of assets or liabilities of any Guarantor, then and in any such
event:
(1) the holders of all Guarantor Senior Indebtedness of such Guarantor
shall be entitled to receive payment in full of all obligations due on or
in respect of all such Guarantor Senior Indebtedness (including Accrued
Bankruptcy Interest) and all outstanding Letter of Credit Obligations cash
collateralized, before the Holders of the Notes are entitled to receive or
retain, pursuant to the Guarantee of such Guarantor, any payment or
distribution of any kind or character by such Guarantor on account of any
of its Obligations on its Guarantee; and
(2) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the subordination provisions of this Article X including any such
distribution that is payable or deliverable by reason of the payment of any
other Indebtedness of the Issuer being subordinated to the payment of the
Notes shall be paid by the liquidating trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of
Guarantor Senior Indebtedness of such Guarantor or the Guarantor
Representative, ratably according to the aggregate amounts remaining unpaid
on account of such Guarantor Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full of all such Guarantor
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payments or distribution, or provisions thereof, to the Holders of such
Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 10.06, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, including,
without limitation, by way of set-off or otherwise, in respect of any of
its Obligations on its Guarantee before all Guarantor Senior Indebtedness
of such Guarantor is paid in full, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of such Guarantor for
application to the payment of all such Guarantor Senior Indebtedness
remaining unpaid, to the extent necessary to pay all of such Guarantor
Senior Indebtedness in full in cash, after giving effect to any concurrent
payment or distribution, or provision thereof to or for the holders of such
Guarantor Senior Indebtedness.
The consolidation of a Guarantor with, or the merger of a Guarantor
with or into, another Person or the liquidation or dissolution of a Guarantor
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of such Guarantor for the purposes of this
Article 10 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
Section 10.07. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in Default.
(a) Unless Section 10.06 hereof shall be applicable, after the
occurrence of a Payment Default on Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness, the occurrence of a Non-Payment
Default on Designated Senior Indebtedness which constitutes Guarantor Senior
Indebtedness and the acceleration of the maturity of Designated Senior
Indebtedness which constitutes Guarantor Senior Indebtedness in accordance with
its terms, or if any judicial proceeding is pending to determine whether any
such default has occurred, no payment or distribution of any assets or
securities of a Guarantor (or any Subsidiary of such Guarantor) of any kind or
character (including, without limitation, cash, property and any payment or
distribution which may be payable or deliverable by reason of the payment of any
other Indebtedness of such Guarantor being subordinated to its Obligations on
its Guarantee) may be made by or on behalf of such Guarantor (or any Subsidiary
of such Guarantor), including, without limitation, by way of set-off or
otherwise, for or on account of its Obligations on its Guarantee, and no holder
or owner of any Notes shall take or receive from any Guarantor (or any
Subsidiary of such Guarantor), directly or indirectly in any manner, payment in
respect of all or any portion of its Obligations on its Guarantee (and, in any
such event, such prohibition shall continue) until such Payment Default is
cured, waived in writing or ceases to exist, such acceleration has been
rescinded or otherwise cured, or such judicial proceeding shall be discharged,
vacated or settled. At such time as the prohibition set forth in the preceding
sentence shall no longer be in effect and, subject to the provisions of the
following paragraph (b), such Guarantor shall resume making any and all required
payments in respect of its Obligations under its Guarantee including any missed
payments.
(b) Unless Section 10.06 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
guaranteed by a Guarantor (which guarantee constitutes Guarantor Senior
Indebtedness of such Guarantor), no payment or distribution of any assets or
securities of such Guarantor or any of its Subsidiaries of any kind or character
(including, without limitation, cash, property and any payment or distribution
which may be payable or deliverable by reason of the payment of any other
Indebtedness of such Guarantor being subordinated to its Obligations on its
Guarantee) shall be made by or on behalf of such Guarantor or any of its
Subsidiaries, including, without limitation, by way of set-off or otherwise, for
or on account of any of its Obligations on its Guarantee, and neither the
Trustee nor any holder or owner of any Notes shall take or receive from any
Guarantor (or any Subsidiary of such Guarantor), directly or indirectly in any
manner, payment in respect of all or any portion of its Obligations on its
Guarantee for a period (a "Guarantee Payment Blockage Period") commencing on the
date of receipt by the Trustee of written notice from the Guarantor
Representative of such Non-Payment Event of Default (subject, however, to the
provisions of Section 11.09), unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (x) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, unless
another default, event of default or other event that would prohibit such
payment, distribution or acquisition under Section 10.07(a) has occurred and is
continuing (y) such Non-Payment Event of Default shall have been cured or waived
in writing or shall have ceased to exist unless another default, event of
default or other event that would prohibit such payment, distribution or
acquisition under Section 10.07(a) has occurred and is continuing or such
Designated Senior Indebtedness shall have been discharged or paid in full or (z)
such Guarantee Payment Blockage Period shall have been terminated by written
notice to such Guarantor or the Trustee from the Guarantor Representative, after
which, in the case of clause (x), (y) or (z), such Guarantor shall resume making
any and all required payments in respect of its Obligations on its Guarantee,
including any missed payments. Notwithstanding any other provisions of this
Indenture, no Non-Payment Event of Default with respect to Designated Senior
Indebtedness which existed or was continuing on the date of the commencement of
any Guarantee Payment Blockage Period initiated by the Guarantor Representative
shall be, or be made, the basis for the commencement of a second Guarantee
Payment Blockage Period initiated by the Guarantor Representative, whether or
not initiated within the Initial Guarantee Blockage Period, unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days. In no event shall a Guarantee Payment Blockage Period extend
beyond 179 days from the date of the receipt by the Trustee of the notice
referred to in this Section 10.07(b) or, in the event of a Non-Payment Event of
Default which formed the basis for a Payment Blockage Period under Section
11.03(b) hereof, 179 days from the date of the receipt by the Trustee of the
notice referred to in Section 11.03(b) (the "Initial Guarantee Blockage
Period"). Any number of additional Guarantee Payment Blockage Periods may be
commenced during the Initial Guarantee Blockage Period; provided, however, that
no such additional Guarantee Payment Blockage Period shall extend beyond the
Initial Guarantee Blockage Period. After the expiration of the Initial Guarantee
Blockage Period, no Guarantee Payment Blockage Period may be commenced under
this Section 10.07(b) and no Payment Blockage Period may be commenced under
Section 11.03(b) hereof until at least 180 consecutive days have elapsed from
the last day of the Initial Guarantee Blockage Period.
(c) If, notwithstanding the provisions of Sections 10.06 and 10.07,
any direct or indirect payment or distribution on account of principal of or
interest on or other Obligations with respect to the Guarantees or acquisition,
repurchase, redemption, retirement or defeasance of any of the Guarantees shall
be made by or on behalf of the Issuer (including any payments or distribution by
any liquidating trustee or agent or other Person in a proceeding referred to in
Section 10.06) and received by any Holder at a time when such payment or
distribution was prohibited by the provisions of Section 10.06 or 10.07 or such
payment or distribution was required to be made to holders of Guarantor Senior
Indebtedness or their Guarantor Representative, then, unless and until such
payment or distribution is no longer prohibited by Section 10.06 or 10.07, such
payment or distribution shall be received, segregated from other funds or assets
and held in trust by the Holders, for the benefit of, and shall be immediately
paid or delivered over to, the holders of Guarantor Senior Indebtedness or their
Guarantor Representative, ratably in accordance with the respective amounts of
the principal of such Guarantor Senior Indebtedness, interest (including Accrued
Bankruptcy Interest) thereon and all other Obligations with respect thereto held
or represented by each, until the principal of all Guarantor Senior
Indebtedness, interest (including Accrued Bankruptcy Interest) thereon and all
other Obligations with respect thereto have been paid in full and all
outstanding Letter of Credit Obligations have been fully cash collateralized.
Any distribution to the holders of Guarantor Senior Indebtedness or their
Guarantor Representative of assets other than cash may be held by such holders
or such Guarantor Representative as additional collateral without any duty to
the Holders to liquidate or otherwise realize on such assets or to apply such
assets to any Guarantor Senior Indebtedness or other Obligations relating
thereto.
Section 10.08. Subrogation to Rights of Holders of
Guarantor Senior Indebtedness.
Upon the payment in full of all amounts payable under or in respect of
all Guarantor Senior Indebtedness of a Guarantor and until the Notes are paid in
full, the Holders shall be subrogated to the rights of the holders of such
Guarantor Senior Indebtedness to receive payments and distributions of cash,
property and securities of such Guarantor applicable to such Guarantor Senior
Indebtedness until all amounts due to be paid under the Guarantee shall be paid
in full. For the purposes of such subrogation, no payments or distributions to
holders of Guarantor Senior Indebtedness of any cash, property or securities to
which Holders of the Notes or the Trustee would be entitled except for the
provisions of this Article 10, and no payments over pursuant to the provisions
of this Article 10 to holders of Guarantor Senior Indebtedness by Holders of the
Notes or the Trustee, shall, as among each Guarantor, its creditors other than
holders of Guarantor Senior Indebtedness and the Holders of the Notes, be deemed
to be a payment or distribution by such Guarantor to or on account of such
Guarantor Senior Indebtedness.
Section 10.09. Guarantee Subordination Provisions Solely
To Define Relative Rights.
The subordination provisions of this Article 10 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the holders of Guarantor Senior Indebtedness on the
other hand. Nothing contained in this Article 10 or elsewhere in this Indenture
or in the Notes is intended to or shall (a) impair, as among each Guarantor, its
creditors other than holders of its Guarantor Senior Indebtedness and the
Holders of the Notes, the obligation of such Guarantor, which is absolute and
unconditional, to make payments to the Holders in respect of its Obligations on
its Guarantee in accordance with its terms; or (b) affect the relative rights
against such Guarantor of the Holders of the Notes and creditors of such
Guarantor other than the holders of the Guarantor Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon a Default or an Event of Default
under this Indenture, subject to the rights, if any, under this Article 10 of
the holders of Guarantor Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Issuer referred
to in Section 10.06 hereof, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 10.07
hereof, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 10.07(c) hereof.
The failure by any Guarantor to make a payment in respect of its
obligations on its Guarantee by reason of any provision of this Article 10 shall
not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 10.10. Application of Certain Article 11
Provisions.
The provisions of Sections 11.04, 11.07, 11.08, 11.09, 11.10, 11.11
11.12, 11.13, 11.14 and 11.15 hereof shall apply, mutatis mutandis, to each
Guarantor and their respective holders of Guarantor Senior Indebtedness and the
rights, duties and obligations set forth therein shall govern the rights, duties
and obligations of each Guarantor, the holders of Guarantor Senior Indebtedness,
the Holders and the Trustee with respect to the Guarantee and all references
therein to Article 11 hereof shall mean this Article 10.
ARTICLE 11
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness.
The Issuer covenants and agrees, and each Holder of Notes, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article 11, the Indebtedness
represented by the Notes and the payment of the principal of, and premium, if
any, interest, indemnification payments, expenses and other amounts on the Notes
and under or in respect of the Financing Documents (collectively, the
"Subordinated Obligations") are hereby expressly made subordinate and subject in
right of payment as provided in this Article 11 to the prior indefeasible
payment and satisfaction in full (as hereinafter defined) of all Senior
Indebtedness.
This Article 11 shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of or continue to hold
Senior Indebtedness; and such provisions are made for the benefit of the holders
of Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
For all purposes of this Article XI, all Senior Indebtedness now or
hereafter existing and all other Obligations relating thereto shall not be
deemed to have been paid in full unless and until all of the Obligations of any
holder thereof shall have been indefeasibly paid in full in cash (including,
without limitation, all Accrued Bankruptcy Interest) and all of the commitments
thereunder shall have been terminated and, in the case of any Letter of Credit
Obligations, such Obligations shall have been fully drawn and paid in full in
cash or 100% cash collateralized.
A distribution may consist of cash, securities or other property, by
set-off or otherwise.
Section 11.02. Payment Over of Proceeds upon Dissolution,
etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, arrangement, reorganization or other similar
case or proceeding in connection therewith, relative to the Issuer or to its
creditors, as such, or to its assets, whether voluntary or involuntary or (b)
any liquidation, dissolution or other winding-up of the Issuer, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any general assignment for the benefit of creditors or any other
marshalling of assets or liabilities of the Issuer, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all obligations due on or in respect of all Senior
Indebtedness (including Accrued Bankruptcy Interest) and all outstanding
Letter of Credit Obligations cash collateralized, before the Holders of the
Notes are entitled to receive or retain any payment or distribution of any
kind or character on account of any of the Subordinated Obligations; and
(2) any payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XI (including any such distribution that is
payable or deliverable by reason of the payment of any other Indebtedness
of the Issuer being subordinated to the payment of the Notes) shall be paid
by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or
their Representative, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full in cash of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution, or provision therefor, to the holders of such
Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 11.02, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, in respect of any of the
Subordinated Obligations before all Senior Indebtedness is paid in full in
cash, then and in such event such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Issuer for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full in cash, after giving
effect to any concurrent payment or distribution, or provision therefor, to
or for the holders of Senior Indebtedness.
The consolidation of the Issuer with, or the merger of Issuer with or
into, another Person or the liquidation or dissolution of the Issuer following
the conveyance, transfer or lease of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in Article
5 hereof shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Issuer for the purposes of this Article XI if the Person
formed by such consolidation or the surviving entity of such merger or the
Person which acquires by conveyance, transfer or lease such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in such Article 5 hereof.
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 11.02 hereof shall be applicable, after the
occurrence of a Payment Default on Designated Senior Indebtedness, the
occurrence of a Non-Payment Default on Designated Senior Indebtedness and the
acceleration of the maturity of Designated Senior Indebtedness in accordance
with its terms, or if any judicial proceeding is pending to determine whether
any such default has occurred, no payment or distribution of any assets or
securities of the Issuer (or any Subsidiary of the Issuer) of any kind or
character (including, without limitation, cash, property and any payment or
distribution which may be payable or deliverable by reason of the payment of any
other Indebtedness of the Issuer being subordinated to the payment of the Notes
by the Issuer) may be made by or on behalf of the Issuer (or any Subsidiary of
the Issuer), including, without limitation, by way of set-off or otherwise, for
or on account of any of the Subordinated Obligations or for or on account of the
purchase, redemption or other acquisition of the Notes, and no holder or owner
of any Notes shall take or receive from the Issuer or any Subsidiary of the
Issuer, directly or indirectly in any manner, payment in respect of all or any
portion of any of the Subordinated Obligations (and, in any such event, such
prohibition shall continue) until such Payment Default is cured, waived in
writing or ceases to exist or such judicial proceeding shall be discharged,
vacated or settled, such acceleration has been rescinded or otherwise cured. At
such time as the prohibition set forth in the preceding sentence shall no longer
be in effect and, subject to the provisions of the following paragraph (b), the
Issuer shall resume making any and all required payments in respect of the
Subordinated Obligations, including any missed payments.
(b) Unless Section 11.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness,
no payment or distribution of any assets or securities of the Issuer or any of
its Subsidiaries of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Issuer being subordinated
to the payment of the Notes by the Issuer) may be made by or on behalf of the
Issuer or any of its subsidiaries, including, without limitation, by way of
set-off or otherwise, for or on account of any of the Subordinated Obligations,
or for or on account of the purchase, redemption, defeasance or other
acquisition of Notes, and neither the Trustee nor any holder or owner of Notes
shall take or receive from the Issuer or any of its Subsidiaries, directly or
indirectly in any manner, payment in respect of all or any portion of the
Subordinated Obligations for a period (a "Payment Blockage Period") commencing
on the date of receipt by the Trustee of written notice from the Representative
of such Non-Payment Event of Default (subject, however, to the provisions of
Section 11.09) unless and until (subject to any blockage of payments that may
then be in effect under the preceding paragraph (a)) the earliest to occur of
the following events: (x) more than 179 days shall have elapsed since the date
of receipt of such written notice by the Trustee, unless another default, event
of default or other event that would prohibit such payment, distribution or
acquisition under Section 11.03(a) has occurred and is continuing (y) such
Non-Payment Event of Default shall have been cured or waived in writing or shall
have ceased to exist , unless another default, event of default or other event
that would prohibit such payment, distribution or acquisition under Section
11.03(a) has occurred and is continuing or such Designated Senior Indebtedness
shall have been paid in full or (z) such Payment Blockage Period shall have been
discharged or terminated by written notice to the Issuer or the Trustee from the
Representative, after which, in the case of clause (x), (y) or (z), the Issuer
shall resume making any and all required payments in respect of the Subordinated
Obligations, including any missed payments. Notwithstanding any other provisions
of this Indenture, no Non-Payment Event of Default with respect to Designated
Senior Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period initiated by the Representative
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period initiated by the Representative, whether or not within the
Initial Blockage Period, unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days. Notwithstanding any
other provisions of this Indenture, in no event shall a Payment Blockage Period
commenced in accordance with the provisions of this Indenture described in this
paragraph extend beyond 179 days from the date of the receipt by the Trustee of
the notice referred to in this Section 11.03(b) (the "Initial Blockage Period").
Any number of additional Payment Blockage Periods may be commenced during the
Initial Blockage Period; provided, however, that no such additional Payment
Blockage Period shall extend beyond the Initial Blockage Period. After the
expiration of the Initial Blockage Period, no Payment Blockage Period may be
commenced under this Section 11.03(b) (and no Guarantee Payment Blockage Period
may be commenced under Section 10.07(b) hereof) until at least 180 consecutive
days have elapsed from the last day of the Initial Blockage Period.
(c) If, notwithstanding the provisions of Sections 11.02 and 11.03,
any direct or indirect payment or distribution on account of any of the
Subordinated Obligations or acquisition, repurchase, redemption, retirement or
defeasance of any of the Notes shall be made by or on behalf of the Issuer
(including any payments or distribution by any liquidating trustee or agent or
other Person in a proceeding referred to in Section 11.02) and received by any
Holder at a time when such payment or distribution was prohibited by the
provisions of Section 11.02 or 11.03 or such payment or distribution was
required to be made to holders of Senior Indebtedness or their Representative,
then, unless and until such payment or distribution is no longer prohibited by
Section 11.02 or 11.03, such payment or distribution shall be received,
segregated from other funds or assets and held in trust by the Holders, for the
benefit of, and shall be immediately paid or delivered over to, the holders of
Senior Indebtedness or their Representative, ratably in accordance with the
respective amounts of the principal of such Senior Indebtedness, interest
(including Accrued Bankruptcy Interest) thereon and all other Obligations with
respect thereto held or represented by each, until the principal of all Senior
Indebtedness, interest (including Accrued Bankruptcy Interest) thereon and all
other Obligations with respect thereto have been paid in full and all
outstanding Letter of Credit Obligations have been fully cash collateralized.
Any distribution to the holders of Senior Indebtedness or their Representative
of assets other than cash may be held by such holders or such Representative as
additional collateral without any duty to the Holders to liquidate or otherwise
realize on such assets or to apply such assets to any Senior Indebtedness or
other Obligations relating thereto.
Section 11.04. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness 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 Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall mistakenly pay
over or deliver to Holders, the Issuer or any other Person moneys or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article 11 or otherwise.
Section 11.05. Subrogation to Rights of Holders of
Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness and until the
Notes are paid in full, the Holders of the Notes shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until Subordinated Obligations shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the provisions of this Article
11, and no payments over pursuant to the provisions of this Article 11 to the
holders of Senior Indebtedness by Holders of the Notes or the Trustee, shall, as
among the Issuer, its creditors other than holders of Senior Indebtedness and
the Holders of the Notes, be deemed to be a payment or distribution by the
Issuer to or on account of the Senior Indebtedness.
Section 11.06. Provisions Solely To Define Relative
Rights.
The provisions of this Article XI are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article XI or elsewhere in this Indenture or in the Notes is intended to
or shall (a) impair, as among the Issuer, its creditors other than holders of
Senior Indebtedness and the Holders of the Notes, the obligation of the Issuer,
which is absolute and unconditional, to pay to the Holders of the Subordinated
Obligations as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Issuer or the Holders
of the Notes and creditors of the Issuer other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
this Article 11 of the holders of Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding-up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the Issuer
referred to in Section 11.02 hereof, to receive, pursuant to and in accordance
with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 11.03, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 11.03(c) hereof.
The failure to make a payment on account of any Subordinated
Obligations by reason of any provision of this Article 11 shall not be construed
as preventing the occurrence of a Default or an Event of Default hereunder.
Section 11.07. Trustee To Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take, in the Trustee's sole discretion, such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Issuer whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Issuer owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time to
file such a claim, the holders of Senior Indebtedness, or any Representative,
may file such a claim on behalf of Holders of the Notes.
Section 11.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination of the Subordinated Obligations as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or any Holder or by any act or failure
to act, in good faith, by any such holder, or by any non-compliance by the
Issuer or any Holder with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of subsection (a) of this Section
11.08, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article 11 or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, 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 extended, restate,
refinance, amend, supplement, renew or alter, Senior Indebtedness, any security
thereof or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against the Issuer and any other Person; provided, however, that in no
event shall any such actions limit the right of the Trustee or the Holders of
the Notes to take any action to accelerate the maturity of the Notes pursuant to
Article 6 hereof or to pursue any rights or remedies hereunder or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Indenture.
(c) Each Holder by its acceptance of any Note: (1) acknowledges and
agrees that the holders of any Senior Indebtedness or their Representative, in
its or their discretion, and without affecting any rights of any holder of
Senior Indebtedness under this Article XI, may foreclose any mortgage or deed of
trust covering interest in real property securing such Senior Indebtedness or
any guarantee thereof by judicial or nonjudicial sale, even though such action
may release the Issuer or any guarantor of such Senior Indebtedness from further
liability under such Senior Indebtedness or any guarantee thereof or may
otherwise limit the remedies available to the holders thereof; and (2) hereby
waives any defense that such Holder may otherwise have to the enforcement by any
holder of any Senior Indebtedness or any Representative of such holder against
such Holder of this Article XI after or as a result of any action, including any
such defense based on any loss or impairment of rights of subrogation.
(d) If at any time any payment of Obligations with respect to any
Senior Indebtedness is rescinded or must otherwise be returned upon the
insolvency, bankruptcy, reorganization or liquidation of the Issuer or
otherwise, the provisions of this Article 11 shall continue to be effective or
reinstated, as the case may be, to the same extent as though such payments had
not been made.
Section 11.09. Notice to Trustee.
(a) The Issuer shall give prompt written notice to the Trustee of any
fact known to the Issuer which would prohibit the making of any payment to or by
the Trustee at its Corporate Trust Office in respect of the Notes.
Notwithstanding the provisions of this Article 11 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received written
notice at least two Business Days prior to the date of any payment to the
Holders thereof from the Issuer or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the timely receipt of any
such written notice, the Trustee, subject to the provisions of this Section
11.09, shall be entitled in all respects to assume that no such facts exist.
(b) Subject to the provisions of Section 7.01 hereof, the Trustee
shall be entitled to rely on the delivery to it of a written notice to the
Trustee and the Issuer by a Person representing itself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor); provided, however, that failure to give such
notice to the Issuer shall not affect in any way the right of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 11, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 11.10. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative. Upon any payment or distribution of assets of the Issuer
referred to in this Article XI, the Trustee, subject to the provisions of
Section 7.01 hereof, and the Holders shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 11.
Section 11.11. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 11 with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article 11 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
Section 11.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuer and be then acting hereunder, the term "Trustee" as
used in this Article 11 shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XI in addition to or in place of the Trustee.
Section 11.13. No Suspension of Remedies.
Nothing contained in this Article 11 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article XI of
the holders, from time to time, of Senior Indebtedness.
SECTION 11.14. Authorization to Effect Subordination.
If any of the Holders does not file a proper proof of claim of debt in
the form required in any proceeding referred to in Section 6.01(6) or 6.01(7)
with respect to the Issuer at least 30 days before the expiration of the time to
file such claim, the Representative is hereby authorized to file an appropriate
claim for, and on behalf of, the Holders; provided that nothing herein shall be
deemed to give the Representative any rights to vote or otherwise act on behalf
of any Holder in such proceeding other than to make such filing.
SECTION 11.15. Amendments.
The provisions of this Article XI shall not be amended or modified in
any manner without the written consent of the holders of all Senior Indebtedness
unless such amendment or modification could not adversely affect the holders of
such Senior Indebtedness.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 12.02. Notices.
Except for notice or communications to Holders any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
If to the Issuer or any Guarantor:
United Industries Corporation
0000 Xxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax Number: (000) 000-0000
Copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, P.C.
Xxxxxxx X. Xxxxxx, P.C.
If to the Trustee:
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Fax Number: (000) 000-0000
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Issuer or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication to a Noteholder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 12.03. Communications by Holders with Other
Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuer, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Issuer or any Guarantor to the
Trustee to take any action under this Indenture, the Issuer or such Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 12.05. Statements Required in Certificate and
Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has made
such examination or investigation as is necessary to enable it or him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 12.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the State of Massachusetts. If a payment date is a Legal Holiday payment may
be made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
Section 12.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 12.09. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Issuer or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 12.10. No Recourse Against Others.
No recourse for the payment of the principal of or premium, if any, or
interest on any of the Notes, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Issuer or any Guarantor in this Indenture or in any
supplemental indenture, or in any of the Notes, or because of the creation of
any Indebtedness represented thereby, shall be had against any stockholder,
officer, director or employee, as such, past, present or future, of the Issuer
or of any successor corporation or against the property or assets of any such
stockholder, officer, employee or director, either directly or through the
Issuer or any Guarantor, or any successor corporation thereof, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the Notes are solely obligations of the Issuer and the Guarantors,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, any stockholder, officer, employee or director of the Issuer or any
Guarantor, or any successor corporation thereof, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or the Notes or implied
therefrom, and that any and all such personal liability of, and any and all
claims against every stockholder, officer, employee and director, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Notes. It is understood that
this limitation on recourse is made expressly for the benefit of any such
shareholder, employee, officer or director and may be enforced by any of them.
Section 12.11. Successors.
All agreements of the Issuer in this Indenture and the Notes shall
bind its successor. All agreements of the Trustee, any additional trustee and
any Paying Agents in this Indenture shall bind its successor.
Section 12.12. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 12.13. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 12.14. Separability.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
UNITED INDUSTRIES CORPORATION
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
Name:
Title:
A-9
EXHIBIT A
[FORM OF FACE OF NOTE]
Number CUSIP
UNITED INDUSTRIES CORPORATION
9-7/8% SENIOR SUBORDINATED NOTE DUE 2009
United Industries Corporation (the "Issuer"), for value received
promise to pay to or registered assigns the principal sum of ONE HUNDRED FIFTY
MILLION DOLLARS ($150,000,000), on April 1, 2009.
Interest Payment Dates: April 1 and October 1,
commencing October 1, 1999
Record Dates: March 15 and September 15
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication shall have been executed by the Trustee by its
manual signature.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized Officers.
UNITED INDUSTRIES CORPORATION
By:
Name:
Title:
By:
Name:
Title:
Certificate of Authentication:
This is one of the 9-7/8% Senior
Subordinated Notes due 2009 referred to in
the within-mentioned Indenture
Dated:
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:
Authorized Signatory
(REVERSE SIDE)
UNITED INDUSTRIES CORPORATION
9-7/8% SENIOR SUBORDINATED NOTE DUE 2009
1. INTEREST.
UNITED INDUSTRIES CORPORATION, a Delaware corporation (the "Issuer"),
promises to pay interest on the principal amount of this Note semiannually on
April 1 and October 1 of each year (each an "Interest Payment Date"), commencing
on October 1, 1999, at the rate of 9-7/8% per annum. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. 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 the original issuance of the Notes.
The Issuer shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate equal
to 2% per annum in excess of the rate borne by the Notes.
2. METHOD OF PAYMENT.
The Issuer will pay interest on this Note provided for in Paragraph 1
above (except defaulted interest) to the person who is the registered Holder of
this Note at the close of business on the March 15 or September 15 preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Issuer will pay principal, premium, if any, and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Issuer may pay principal, premium, if
any, and interest by check payable in such money. They may mail an interest
check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, State Street Bank and Trust Company (the "Trustee") will
act as Paying Agent and Registrar. The Issuer may change any Paying Agent or
Registrar without notice to the Holders of the Notes. Neither the Issuer nor any
of its Subsidiaries or Affiliates may act as Paying Agent but may act as
Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Issuer issued this Note under an Indenture dated as of March 24,
1999 (the "Indenture") among the Issuer, the Guarantors and the Trustee. The
terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture. This Note is
subject to all such terms, and the Holder of this Note is referred to the
Indenture and said Trust Indenture Act for a statement of them. All capitalized
terms in this Note, unless otherwise defined, have the meanings assigned to them
by the Indenture.
The Notes are general unsecured obligations of the Issuer limited to
$150,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of capital stock by Subsidiaries of the
Issuer, mergers and sale of assets, the payments of dividends on, or the
repurchase of, capital stock of the Issuer and their Restricted Subsidiaries,
certain other restricted payments by the Issuer and their Restricted
Subsidiaries, certain transactions with, and investments in, its affiliates,
certain sale and lease-back transactions and a provision regarding
change-of-control transactions.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinated and subject in right of payment
to the prior payment in full of all Senior Indebtedness as defined in the
Indenture, and this Note is issued subject to such provisions. Each Holder of
this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that the
Indebtedness evidenced by this Note shall cease to be so subordinate and subject
in right of payment upon any defeasance of this Note referred to in Paragraph 18
below.
6. OPTIONAL REDEMPTION.
The Issuer, at its option, may redeem the Notes, in whole or in part,
at any time on or after April 1, 2004 upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount), set forth below, together, in each case, with accrued and unpaid
interest to the Redemption Date, if redeemed during the twelve month period
beginning on April 1 of each year listed below:
Year Redemption Price
2004............................... 104.938%
2005............................... 103.292%
2006............................... 101.646%
2007 and thereafter................ 100.000%
Notwithstanding the foregoing, the Issuer may redeem in the aggregate
up to 40% of the original principal amount of Notes at any time and from time to
time prior to April 1, 2002 at a redemption price equal to 109.875% of the
aggregate principal amount so redeemed, plus accrued interest to the Redemption
Date out of the Net Proceeds of one or more Qualified Public Offerings; provided
that at least 60% of the principal amount of Notes remain outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 90 days following the closing of any such Qualified
Public Offering.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Issuer shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Issuer are also required to make an offer to purchase Notes upon
the occurrence of a Change of Control in accordance with procedures set forth in
the Indenture.
9. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Issuer, CIBC
Xxxxxxxxxxx Corp. and NationsBanc Xxxxxxxxxx Securities LLC, as initial
purchasers of the Notes, the Issuer will be obligated to consummate an exchange
offer pursuant to which the Holder of this Note shall have the right to exchange
this Note for Notes of a separate series issued under the Indenture (or a trust
indenture substantially identical to the Indenture in accordance with the terms
of the Registration Rights Agreement) which have been registered under the
Securities Act, in like principal amount and having substantially identical
terms as the Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before the mailing of notice of redemption of Notes to be
redeemed or any Note after it is called for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
11. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
12. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Issuer at its written request. After that, Holders entitled to money
must look to the Issuer for payment as general creditors unless an "abandoned
property" law designates another person.
13. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Issuer, the Guarantors and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding and any existing default or compliance with any
provision may be waived in a particular instance with the consent of the Holders
of a majority in principal amount of the Notes then outstanding. Without the
consent of Holders, the Issuer, the Guarantors and the Trustee may amend the
Indenture or the Notes or supplement the Indenture for certain specified
purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or making
any other change that does not adversely affect the rights of any Holder.
14. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
15. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.01(6) or (7) of
the Indenture with respect to the Issuer) occurs and is continuing, the Trustee
by notice to the Issuer, or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, may declare to be immediately
due and payable the entire principal amount of all the Notes then outstanding
plus accrued but unpaid interest to the date of acceleration and (i) such
amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of the Senior Credit Facility, such
amounts shall become due and payable upon the first to occur of an acceleration
of amounts outstanding under or in respect of the Senior Credit Facility or five
Business Days after receipt by the Issuer and the Representative of notice of
the acceleration of the Notes; provided, however, that after such acceleration
but before judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Notes may, under certain circumstances, rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of principal, premium or interest that has become due solely
because of the acceleration, have been cured or waived and if the rescission
would not conflict with any judgment or decree. No such rescission shall affect
any subsequent Default or impair any right consequent thereto. In case an Event
of Default specified in Section 6.01(6) or (7) of the Indenture with respect to
either of the Issuer occurs, such principal amount, together with premium, if
any, and interest with respect to all of the Notes, shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes.
16. TRUSTEE DEALINGS WITH THE ISSUER
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuer, any Guarantor or their Affiliates, and may otherwise deal with the
Issuer any Guarantor or their Affiliates, as if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Issuer or any Guarantor shall not have
any liability for any obligations of the Issuer or any Guarantor under the Notes
or the Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
18. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Issuer with certain conditions set forth in the
Indenture.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors
Act).
20. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Issuer has caused CUSIP Numbers to be
printed on the Notes and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such 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.
21. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
NOTE.
THE ISSUER WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: UNITED
INDUSTRIES CORPORATION, 0000 Xxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention:
Chief Financial Officer.
22. GUARANTEES BY FUTURE SUBSIDIARIES.
The Notes will be entitled to the benefits of certain Guarantees by
future subsidiaries made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
Date: Your Signature:
(Sign exactly as your
name appears on the
other side of this
Note)
Signature Guarantee:
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Issuer pursuant to Section 4.10 or Section 4.19 of the Indenture, check the
appropriate box:
Section 4.10 Section 4.19
If you want to have only part of the Note purchased by the pursuant to
Section 4.10 or Section 4.19 of the Indenture, state the amount you elect to
have purchased (in amounts of $1,000 or an integral multiple thereof):
$
Date:
Your Signature:
(Sign exactly as your name appears on
the face of this Note)
Signature Guaranteed
B-3
EXHIBIT B
[FORM OF LEGEND FOR 144A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT IT WILL NOT
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER, WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF SUCH NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, (C) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X)
XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
COMPANY AND THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT OR (F)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT
(IF AVAILABLE) AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
==============================================================
--------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
==============================================================
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: __________________ Your Signature: _____________________
(Sign exactly as your
name appears on the
other side of this
Note)
Signature Guarantee: ____________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________ ________________________________
NOTICE: To be executed by
an executive officer
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
==============================================================
--------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
==============================================================
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: __________________ Your Signature: _____________________
(Sign exactly as your
name appears on the
other side of this
Note)
Signature Guarantee: ____________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________ ________________________________
NOTICE: To be executed by
an executive officer
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note or Regulation S Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE 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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER
OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXHIBIT E
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------, ----
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX
Attention:
Re: UNITED INDUSTRIES CORPORATION (the
"Issuer") 9-7/8% Senior Subordinated
Notes due 2009 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as
of March 24, 1999 relating to the Notes and we agree to be bound by, and
not to resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Notes, we will do
so only (i) to an Issuer or any subsidiary thereof, (ii) pursuant to an
effective registration statement under the Securities Act, (iii) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A), (iv) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you a
signed letter containing certain representations and agreements relating to
the restrictions on transfer of the Notes, (v) outside the United States to
persons other than U.S. persons in offshore transactions meeting the
requirements of Rule 904 of Regulation S under the Securities Act, or (vi)
pursuant to any other exemption from registration under the Securities Act
(if available), and we further agree to provide to any person purchasing
any of the Notes from us a notice advising such purchaser that resales of
the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Issuer such certifications, legal
opinions and other information as you and the Issuer may reasonably require
to confirm that the proposed sale complies with the foregoing restrictions.
We further understand that the Notes purchased by us will bear a legend to
the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting each are able to
bear the economic risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
Authorized Signature
EXHIBIT F
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------, ----
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX
Attention:
Re: UNITED INDUSTRIES CORPORATION (the "Issuer")
9-7/8% Senior Subordinated Notes due 2009 (the
"Notes")
Dear Sirs:
In connection with our proposed sale of $150,000,000 aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S.
person or to a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
EXHIBIT G
[FORM OF GUARANTEE]
The undersigned (the "Guarantor") hereby unconditionally guarantees,
on a senior subordinated basis, jointly and severally with all other guarantors
under the Indenture dated as of March 24, 1999 by and among United Industries
Corporation, a Delaware corporation (the "Issuer"), and State Street Bank and
Trust Company, as trustee (as amended, restated or supplemented from time to
time, the "Indenture"), to the extent set forth in the Indenture and subject to
the provisions of the Indenture, (a) the due and punctual payment of the
principal of and premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on overdue principal of, and premium, if any, and interest on the Notes, to the
extent lawful, and the due and punctual performance of all other obligations of
the Issuer to the Noteholders or the Trustee, all in accordance with the terms
set forth in Article 10 of the Indenture, and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
This guarantee shall be automatically and unconditionally released and
discharged upon certain mergers, consolidations, sales and other dispositions
(including, without limitation, by foreclosure) in accordance with the
Indenture.
The obligations of the Guarantor to the Noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
Guarantor
By:
Name:
Title:
