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EXHIBIT 4.2
EXECUTION COPY
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PUEBLO XTRA INTERNATIONAL, INC.,
as Issuer
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
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INDENTURE
Dated as of April 29, 1997
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9 1/2% Series B Senior Notes Due 2003
9 1/2% Series C Senior Notes Due 2003
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY.............................................. 1
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions......................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act... 18
SECTION 1.03. Rules of Construction............................... 18
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating..................................... 19
SECTION 2.02. Restrictive Legends................................. 20
SECTION 2.03. Execution, Authentication and Denominations......... 22
SECTION 2.04. Registrar and Paying Agent.......................... 23
SECTION 2.05. Paying Agent to Hold Money in Trust................. 24
SECTION 2.06. Transfer and Exchange............................... 24
SECTION 2.07. Book-Entry Provisions for U.S. Global Security...... 25
SECTION 2.08. Special Transfer Provisions......................... 26
SECTION 2.09. Replacement Securities.............................. 30
SECTION 2.10. Outstanding Securities.............................. 30
SECTION 2.11. Temporary Securities................................ 31
SECTION 2.12. Cancellation........................................ 31
SECTION 2.13. CUSIP Numbers....................................... 31
SECTION 2.14. Defaulted Interest.................................. 31
SECTION 2.15. Treasury Securities Deemed Outstanding.............. 32
SECTION 2.16. Securities Obligations of Company Only.............. 32
ARTICLE THREE
COVENANTS
SECTION 3.01. Payment of Securities............................... 32
SECTION 3.02. Maintenance of Office or Agency..................... 32
SECTION 3.03. Limitation on Indebtedness.......................... 33
SECTION 3.04. Limitation on Restricted Payments................... 35
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SECTION 3.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.... 38
SECTION 3.06. Limitation on the Issuance of Capital Stock of
Restricted Subsidiaries........................... 39
SECTION 3.07. Limitation on Transactions with Shareholders and
Affiliates ....................................... 39
SECTION 3.08. Limitation on Liens................................. 40
SECTION 3.09. Limitation on Asset Sales........................... 41
SECTION 3.10. Limitation on Sale-Leaseback Transactions........... 44
SECTION 3.11. Repurchase of Securities upon Change of Control..... 45
SECTION 3.12. Corporate Existence................................. 47
SECTION 3.13. Payment of Taxes and Other Claims................... 47
SECTION 3.14. Maintenance of Properties and Insurance............. 47
SECTION 3.15. Compliance Certificates............................. 48
SECTION 3.16. Commission Reports and Reports to Holders........... 48
SECTION 3.17. Waiver of Stay, Extension or Usury Laws............. 49
SECTION 3.18. Certain Other Limitations........................... 49
ARTICLE FOUR
SUCCESSOR CORPORATION
SECTION 4.01. When Company May Merge, Etc......................... 49
SECTION 4.02. Successor Corporation Substituted................... 50
ARTICLE FIVE
DEFAULT AND REMEDIES
SECTION 5.01. Events of Default................................... 51
SECTION 5.02. Acceleration........................................ 53
SECTION 5.03. Other Remedies...................................... 53
SECTION 5.04. Waiver of Past Defaults............................. 53
SECTION 5.05. Control by Majority................................. 54
SECTION 5.06. Limitation on Suits................................. 54
SECTION 5.07. Rights of Holders to Receive Payment................ 55
SECTION 5.08. Collection Suit by Trustee.......................... 55
SECTION 5.09. Trustee May File Proofs of Claim.................... 55
SECTION 5.10. Priorities.......................................... 56
SECTION 5.11. Undertaking for Costs............................... 56
SECTION 5.12. Restoration of Rights and Remedies.................. 56
SECTION 5.13. Rights and Remedies Cumulative...................... 56
SECTION 5.14. Delay or Omission Not Waiver........................ 57
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ARTICLE SIX
TRUSTEE
SECTION 6.01. Rights of Trustee................................... 57
SECTION 6.02. Individual Rights of Trustee........................ 58
SECTION 6.03. Trustee's Disclaimer................................ 58
SECTION 6.04. Notice of Default................................... 58
SECTION 6.05. Reports by Trustee to Holders....................... 59
SECTION 6.06. Compensation and Indemnity.......................... 59
SECTION 6.07. Replacement of Trustee.............................. 60
SECTION 6.08. Successor Trustee by Merger, Etc.................... 61
SECTION 6.09. Eligibility......................................... 61
SECTION 6.10. Money Held in Trust................................. 61
ARTICLE SEVEN
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's Obligations................ 61
SECTION 7.02. Defeasance and Discharge of Indenture............... 62
SECTION 7.03. Defeasance of Certain Obligations................... 64
SECTION 7.04. Application of Trust Money.......................... 66
SECTION 7.05. Repayment to Company................................ 66
SECTION 7.06. Reinstatement....................................... 67
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.......................... 67
SECTION 8.02. With Consent of Holders............................. 68
SECTION 8.03. Revocation and Effect of Consent.................... 69
SECTION 8.04. Notation on or Exchange of Securities............... 69
SECTION 8.05. Trustee to Sign Amendments, Etc..................... 69
SECTION 8.06. Conformity with Trust Indenture Act................. 70
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. Trust Indenture Act of 1939......................... 70
SECTION 9.02. Notices............................................. 70
SECTION 9.03. Certificate and Opinion as to Conditions Precedent.. 71
SECTION 9.04. Statements Required in Certificate or Opinion....... 71
SECTION 9.05. Rules by Trustee, Paying Agent or Registrar......... 72
SECTION 9.06. Payment Date Other Than a Business Day.............. 72
SECTION 9.07. Governing Law....................................... 72
SECTION 9.08. No Adverse Interpretation of Other
Agreements........................................ 72
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SECTION 9.09. No Recourse Against Others.......................... 72
SECTION 9.10. Successors.......................................... 72
SECTION 9.11. Duplicate Originals................................. 73
SECTION 9.12. Separability........................................ 73
SECTION 9.13. Table of Contents, Headings, Etc.................... 73
ARTICLE TEN
REDEMPTION
SECTION 10.01. Right of Redemption............................... 73
SECTION 10.02. Notices to Trustee................................ 73
SECTION 10.03. Selection of Securities to Be Redeemed............ 73
SECTION 10.04. Notice of Redemption.............................. 74
SECTION 10.05. Effect of Notice of Redemption.................... 75
SECTION 10.06. Deposit of Redemption Price....................... 75
SECTION 10.07. Payment of Securities Called for Redemption....... 75
SECTION 10.08. Securities Redeemed in Part....................... 76
SIGNATURES........................................................... 77
EXHIBITS
EXHIBIT A - Form of Security
EXHIBIT B - Form of Certificate to Be Delivered upon Termination
of Restricted Period
EXHIBIT C - Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
EXHIBIT D - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
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INDENTURE, dated as of April 29, 1997, among Pueblo Xtra
International, Inc., a Delaware corporation, as Issuer (the "Company"), and
United States Trust Company of New York, a New York banking corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $85,000,000 principal amount of
the Company's 9 1/2% Series B Senior Notes Due 2003 (herein called the "Initial
Securities"), and 9 1/2% Series C Senior Notes Due 2003 (the "Exchange
Securities" and, together with the Initial Securities, the "Securities")
issuable as provided in this Indenture. All things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have
been done and the Company has done all things necessary to make the Securities,
when executed by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, the valid obligations of the Company
as hereinafter provided.
Upon the issuance of the Exchange Securities, if any, or the
effectiveness of the Exchange Offer Registration Statement (as defined herein)
or, under certain circumstances, the effectiveness of the Shelf Registration
Statement (as defined herein), this Indenture will be subject to the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at
the time such Person became a Subsidiary.
"Adjusted Consolidated Net Income" means, for any Person for any
period, the aggregate net income (or loss) of such Person and its consolidated
Subsidiaries for such period determined in accordance with GAAP; provided that
the following items shall be excluded in computing Adjusted Consolidated Net
Income (without
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duplication): (i) the net income (or loss) of any Person (other than a
Subsidiary) in which such Person or any of its Subsidiaries has a joint interest
with a third party, except to the extent of the amount of dividends or other
distributions actually paid to such Person or any of its Subsidiaries by such
other Person during such period, (ii) solely for the purpose of calculating the
amount of Restricted Payments that may be made pursuant to the first paragraph
of Section 3.04 of this Indenture (and in such case, except to the extent
includible pursuant to clause (i) above), the net income (or loss) of any other
Person accrued prior to the date it becomes a Subsidiary of such Person or is
merged into or consolidated with such Person or any of its Subsidiaries or all
or substantially all of the property and assets of such other Person are
acquired by such Person or any of its Subsidiaries, (iii) the net income (or
loss) of any Subsidiary of such Person to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of such net
income is not at the time permitted by the operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary, (iv) any gains or losses
(on an after-tax basis) attributable to Asset Sales, (v) any amounts paid or
accrued as dividends on Preferred Stock of any Subsidiary of such Person and
(vi) all extraordinary gains and extraordinary losses. Notwithstanding the
foregoing, (i) solely for the purposes of calculating the Consolidated Fixed
Charge Ratio (and in such case, except to the extent includible pursuant to
clause (i) above), "Adjusted Consolidated Net Income" of the Company shall
include the amount of all cash dividends received by the Company or any
Subsidiary of the Company from an Unrestricted Subsidiary and (ii) "Adjusted
Consolidated Net Income" shall include gains attributable to sales of equipment
made in connection with store renovations and improvements in an amount not to
exceed $1 million in any fiscal year of the Company.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. Solely for the purpose
of the definition of "Change of Control," the term "Affiliate" shall be deemed
to include, with respect to Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, any member or
members of the family of either Xxxxxxx Xxxxxxxx or Xxxxxxx Xxxxxxxx or any
trust primarily for the benefit of one or more such Persons.
"Agent" means any Registrar, Paying Agent, authenticating agent (if
any) or co-registrar (if any).
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"Asset Acquisition" means (i) an investment by the Company or any of
its Subsidiaries in any other Person pursuant to which such Person shall become
a Subsidiary of the Company or any of its Subsidiaries or shall be merged into
or consolidated with the Company or any of its Subsidiaries or (ii) an
acquisition by the Company or any of its Subsidiaries of the property and assets
of any Person (other than the Company or any of its Subsidiaries) that
constitute substantially all of an operating unit or business of such Person.
"Asset Disposition" means the sale or other disposition by the
Company or any of its Subsidiaries (other than to the Company or another
Subsidiary of the Company) of (i) all or substantially all of the Capital Stock
of any Subsidiary of the Company or (ii) all or substantially all of the
property and assets that constitute an operating unit or business of the Company
or any of its Subsidiaries.
"Asset Sale" means, with respect to any Person, any sale, transfer
or other disposition (including by way of merger, consolidation or
sale-leaseback transactions) in one transaction or a series of related
transactions by such Person or any of its Subsidiaries to any Person (other than
to the Company or any of its Subsidiaries) of (i) all or any of the Capital
Stock of any Subsidiary of such Person, (ii) all or substantially all of the
property and assets of an operating unit or business of such Person or any of
its Subsidiaries or (iii) any other property and assets of such Person or any of
its Subsidiaries outside the ordinary course of business and, in each case, that
is not governed by Section 4.01; provided that sales or other dispositions of
inventory, receivables and other current assets in the ordinary course of
business shall not be included within the meaning of such term.
"Attributable Indebtedness" means, when used in connection with a
sale-leaseback transaction referred to in Section 3.10, at any date of
determination, the product of (i) the net proceeds from such sale-leaseback
transaction and (ii) a fraction, the numerator of which is the number of full
years of the term of the lease relating to the property involved in such
sale-leaseback transaction (without regard to any options to renew or extend
such term) remaining at the date of determination and the denominator of which
is the number of full years of the term of such lease (without regard to any
options to renew or extend such term) measured from the first day of such term.
"Average Life" means, at any date of determination with respect to
any debt security, the quotient obtained by dividing (i) the sum of the product
of (a) the number of years from such date of determination to the dates of each
successive scheduled principal
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payment of such debt security and (b) the amount of such principal payment by
(ii) the sum of all such principal payments.
"Bank Credit Agreement" means the Credit Agreement dated as of July
21, 1993, as amended and restated as of April 29, 1997, among the Company,
Pueblo and The Bank of Nova Scotia and NationsBank (N.A.) South, as Agents for
the Banks party thereto, together with the related documents thereto (including,
without limitation, any guaranties and security documents), consisting a
revolving credit facility, in each case as such agreements may be subsequently
amended (including any amendment and restatement thereof), supplemented,
replaced, refinanced or otherwise modified from time to time.
"Banks" means the lenders who are from time to time parties to the
Bank Credit Agreement.
"Board of Directors" means the Board of Directors of the Company or
any committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in The City of New York, or in the city of the
Corporate Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock of such Person which is
outstanding or issued on or after July 28, 1993, including, without limitation,
all Common Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in accordance with
GAAP, is required to be capitalized on the balance sheet of such Person; and
"Capitalized Lease Obligation" means the rental obligations, as aforesaid, under
such lease.
"Change of Control" shall be deemed to have occurred at such time as
(i) (a) a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act), other than
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Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and their respective Affiliates, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 35% of the total voting power of the then outstanding Voting Stock of the
Company or Holdings and (b) Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and their
respective Affiliates beneficially own, directly or indirectly, less than 50% of
the total voting power of the then outstanding Voting Stock of the Company; or
(ii) at any time when Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx or their respective
Affiliates beneficially own, directly or indirectly, less than 50% of the total
voting power of the then outstanding Voting Stock of the Company, individuals
who at the beginning of any period of two consecutive calendar years constituted
the board of directors of the Company or Holdings (together with any new
directors whose election by the board of directors of the Company or Holdings or
whose nomination for election by the shareholders of the Company or Holdings was
approved by a vote of at least a majority of the members of the board of
directors of the Company or Holdings then still in office who either were
members of the board of directors of the Company or Holdings at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
board of directors of the Company or Holdings, as the case may be.
"Change of Control Offer" has the meaning provided in Section 3.11
of this Indenture.
"Change of Control Payment" has the meaning provided in Section 3.11
of this Indenture.
"Change of Control Payment Date" has the meaning provided in Section
3.11 of this Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of common stock of such Person which is
outstanding or issued on or after July 28, 1993, including, without limitation,
all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to Article Four of this Indenture and thereafter
means the successor.
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"Consolidated EBITDA" means, with respect to any Person for any
period, the sum of the amounts for such period of (i) Adjusted Consolidated Net
Income, (ii) Consolidated Fixed Charges, (iii) income taxes (calculated
excluding the effect of extraordinary and non-recurring gains or losses on sales
of assets), (iv) depreciation expense, (v) amortization expense and (vi) all
other noncash items reducing Adjusted Consolidated Net Income, less all noncash
items increasing Adjusted Consolidated Net Income, all as determined on a
consolidated basis for such Person and its consolidated Subsidiaries in
conformity with GAAP; provided that, if a Person has any Subsidiary that is not
a Wholly Owned Subsidiary of such Person, Consolidated EBITDA of such Person
shall be reduced by an amount equal to the Adjusted Consolidated Net Income of
such Subsidiary multiplied by the quotient of (x) the number of shares of
outstanding Common Stock of such Subsidiary not owned on the last day of such
period by such Person or any Subsidiary of such Person divided by (y) the total
number of shares of outstanding Common Stock of such Subsidiary on the last day
of such period.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, without duplication, the sum of (i) Consolidated Interest Expense,
(ii) all but the principal component in respect of Capitalized Lease
Obligations, and (iii) cash dividends payable on Preferred Stock issued by a
Subsidiary of such Person and on Redeemable Stock, determined on a consolidated
basis for such Person and its consolidated Subsidiaries in accordance with GAAP
(except as otherwise expressly specified herein) excluding, however, any such
amounts of any Subsidiary of such Person if the net income (or loss) of such
Subsidiary for such period is excluded in the calculation of Adjusted
Consolidated Net Income for such Person pursuant to clause (iii) of the
definition thereof (but only in the same proportion as the net income (or loss)
of such Subsidiary is excluded from the calculation of Adjusted Consolidated Net
Income for such Person pursuant to clause (iii) of the definition thereof).
"Consolidated Fixed Charge Ratio" means, with respect to any Person
on any Transaction Date, the ratio of (i) the aggregate amount of Consolidated
EBITDA of such Person for the four fiscal quarters for which financial
information in respect thereof is available immediately prior to such
Transaction Date (the "Reference Period") to (ii) the aggregate Consolidated
Fixed Charges of such Person during the Reference Period. In making the
foregoing calculation, (a) pro forma effect shall be given to any Indebtedness
Incurred during or after the Reference Period and on or before the Transaction
Date, to the extent such Indebtedness is outstanding at the Transaction Date, in
each case as if such Indebtedness had been Incurred on the first day of the
Reference Period and after giving effect to the application of the proceeds
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thereof; (b) Consolidated Interest Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on a pro forma basis
and bearing a floating interest rate shall be computed as if the rate in effect
on the date of computation (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months) had been the applicable rate for the entire period;
(c) there shall be excluded from Consolidated Interest Expense any amounts
relating to Indebtedness that was outstanding during or after the Reference
Period or thereafter but which is not outstanding or which has been or is to be
repaid with the proceeds of other Indebtedness Incurred during or after the
Reference Period and on or before the Transaction Date; (d) pro forma effect
shall be given to Asset Dispositions and Asset Acquisitions that occur during or
after the Reference Period and on or before the Transaction Date as if they had
occurred on the first day of the Reference Period; (e) pro forma effect shall be
given, in the same manner as provided in the foregoing clause (d), to asset
dispositions and asset acquisitions made by any Person that has become a
Subsidiary of the Company or has been merged with or into the Company or any
Subsidiary of the Company during or after the Reference Period and on or before
the Transaction Date and that would have been Asset Dispositions or Asset
Acquisitions had such transactions occurred when such Person was a Subsidiary of
the Company; and (f) with respect to any Reference Period commencing prior to
the date of consummation of the Related Transactions, the Related Transactions
shall be deemed to have taken place on the first day of the Reference Period.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the aggregate amount of interest in respect of Indebtedness
(including amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting; all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing; and the net costs associated with Interest Rate
Agreements); excluding, however, any premiums, fees and expenses (and any
amortization thereof) payable in connection with the Refinancing Plan, all as
determined for such Person and the consolidated Subsidiaries on a consolidated
basis in conformity with GAAP.
"Consolidated Net Tangible Assets" means, at any date of
determination, the total amount of assets of the Company and its Subsidiaries
(less applicable depreciation, amortization and other valuation reserves),
except to the extent resulting from write-ups of capital assets (excluding
write-ups in connection with accounting for acquisitions in conformity with
GAAP), after deducting therefrom (i) all current liabilities of the Company and
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its consolidated Subsidiaries (excluding intercompany items) and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the then most recently
available consolidated balance sheet of the Company and its consolidated
Subsidiaries prepared in conformity with GAAP.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the then most recently available
consolidated balance sheet of the Company and its consolidated Subsidiaries
(which shall be as of a date not more than 60 days prior to the date of such
computation), less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of Capital Stock of the Company or any of its Subsidiaries, each item to be
determined in conformity with GAAP (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Corporate Trust and Agency Division.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values to or
under which the Company or any of its Subsidiaries is a party or a beneficiary
on July 28, 1993 or becomes a party or a beneficiary thereafter.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Event of Default" has the meaning provided in Section 5.01 of this
Indenture.
"Excess Proceeds" has the meaning provided in Section 3.09 of this
Indenture.
"Excess Proceeds Offer" has the meaning provided in Section 3.09 of
this Indenture.
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"Excess Proceeds Payment" has the meaning provided in Section 3.09
of this Indenture.
"Excess Proceeds Payment Date" has the meaning provided in Section
3.09 of this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the exchange offer that may be effected
pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of
this Indenture and refers to any Exchange Securities containing terms
substantially identical to the Initial Securities (except that such Exchange
Securities shall not contain terms with respect to the interest rate step-up
provision and transfer restrictions) that are issued and exchanged for the
Initial Securities pursuant to the Registration Rights Agreement and this
Indenture.
"Existing Notes" means the 9 1/2% Senior Notes due 2003 of the
Company issued on July 28, 1993.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of July 28, 1993 applied on a basis consistent
with the principles, methods, procedures and practices employed in the
preparation of the Company's audited financial statements, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to
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keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Securityholder" is defined to mean the registered
holder of any Security.
"Holdings" means PXC&M Holdings, Inc., a Delaware corporation, and
its successors.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness; provided that neither the accrual of interest (whether such
interest is payable in cash or kind) nor the accretion of original issue
discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all obligations of such Person as
lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured
by a Lien on any asset of such Person, whether or not such Indebtedness is
assumed by such Person; provided that the amount of such Indebtedness shall be
the lesser of (a) the fair market value of such asset at such date of
determination and (b) the amount of such Indebtedness, (vii) all Indebtedness of
other Persons Guaranteed by such Person to the extent such Indebtedness is
Guaranteed by such Person, (viii) to the extent not otherwise included in this
definition, all obligations of such Person under Currency Agreements and
Interest Rate Agreements and (ix) all Preferred Stock of Subsidiaries and all
Redeemable Stock, valued in each case at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends. The amount
of Indebtedness of any Person at any date shall be the
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outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided
that the amount outstanding at any time of any Indebtedness issued with original
issue discount is the face 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.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Interest Payment Date" means each semiannual interest payment date
on February 1 and August 1 of each year, commencing August 1, 1997.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect the Company or any of its Subsidiaries against
fluctuations in interest rates to or under which the Company or any of its
Subsidiaries is a party or a beneficiary on July 28, 1993 or becomes a party or
a beneficiary thereafter.
"Investment" means, with respect to any Person, any direct or
indirect advance, loan (other than advances to customers in the ordinary course
of business that are recorded as accounts receivable on the balance sheet of
such Person or its Subsidiaries) or other extension of credit or capital
contribution to any other Person (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of Capital Stock,
bonds, notes, debentures or other similar instruments issued by any other
Person. For purposes of the definition of "Unrestricted Subsidiary" and Section
3.04, (i) the amount of any "Investment" in any Unrestricted Subsidiary shall
include the fair market value of the net assets of any Subsidiary of the Company
at the time that such Subsidiary of the Company is designated an Unrestricted
Subsidiary, and the fair market value of the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary of the Company shall be treated as a reduction in
Investments in Unrestricted Subsidiaries, subject to the limitation set forth in
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clause (3) of the first paragraph of Section 3.04 and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined by the
Board of Directors in good faith.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof, any sale with
recourse against the seller or any Affiliate of the seller, or any agreement to
give any security interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the extent such obligations are financed
or sold with recourse to the Company or any Subsidiary of the Company) and
proceeds from the conversion of other property received when converted to cash
or cash equivalents, net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of counsel and investment bankers) related
to such Asset Sale, (ii) provisions for all taxes (whether or not such taxes
will actually be paid or are payable) as a result of such Asset Sale computed
without regard to the consolidated results of operations of the Company and its
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that is either (a)
secured by a Lien on the property or assets sold or (b) required to be paid as a
result of such sale and (iv) appropriate amounts to be provided by the Company
or any Subsidiary of the Company as a reserve against liabilities associated
with such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as determined in conformity with GAAP.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S.
"Officer" means, with respect to the Company, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by two Officers.
Each Officers' Certificate shall include the statements provided for in Section
9.04.
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"Opinion of Counsel" means a written opinion signed by legal counsel
who is acceptable to the Trustee. Such counsel may be an employee of or counsel
to the Company or the Trustee. Each such Opinion of Counsel shall include the
statements provided for in Section 9.04.
"Paying Agent" has the meaning provided in Section 2.04, except
that, for the purposes of Article Seven, the Paying Agent shall not be the
Company or a Subsidiary of the Company or an Affiliate of any of them. The term
"Paying Agent" includes any additional Paying Agent.
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims that are being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (ii) statutory Liens of landlords
and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or
other similar Liens arising in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (iii) Liens incurred or deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (iv) Liens incurred
or deposits made to secure the performance of tenders, bids, leases, statutory
or regulatory obligations, bankers' acceptances, surety and appeal bonds,
government contracts, performance and return of money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (v) easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially
interfere with the ordinary course of business of the Company or any of its
Subsidiaries; (vi) Liens (including extensions and renewals thereof) upon real
or tangible personal property acquired after July 28, 1993; provided that (a)
such Lien is created solely for the purpose of securing Indebtedness Incurred
(1) to finance the cost (including the cost of improvement or construction) of
the item of property or assets subject thereto and such Lien is created prior
to, at the time of or within 12 months after the later of the acquisition, the
completion of construction or the commencement of full operation of such
property or (2) to refinance any Indebtedness previously so secured, (b) the
principal amount of the Indebtedness secured by such Lien does not exceed 100%
of such cost and (c) any such Lien shall not extend to or cover any property or
assets other than such item of property or assets and any
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improvements on such item; (vii) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company or
any of its Subsidiaries; (viii) Liens encumbering property or assets under
construction arising from obligations of the Company or any of its Subsidiaries
to make progress or partial payments relating to such property or assets; (ix)
any interest or title of a lessor in the property subject to any Capitalized
Lease; provided that any sale-leaseback transaction related thereto complies
with Section 3.10; (x) Liens arising from filing Uniform Commercial Code
financing statements, chattel mortgages or similar documents regarding leases or
by vendors in respect of inventory on which "advance money" has been paid; (xi)
Liens on property of, or on shares of stock or Indebtedness of, any corporation
existing at the time such corporation becomes, or becomes a part of, any
Restricted Subsidiary; (xii) Liens in favor of the Company or any Restricted
Subsidiary; (xiii) Liens on any facilities, equipment or other property of the
Company or any Subsidiary of the Company in favor of the United States of
America or any State, or any department, agency, instrumentality or political
subdivision thereof (including the Commonwealth of Puerto Rico and the United
States Virgin Islands), in connection with the issuance of industrial revenue
bonds or on any equipment or other property designed primarily for the purpose
of air or water pollution control; provided that any such Lien on such
facilities, equipment or other property shall not apply to any other assets of
the Company or such Subsidiary of the Company; (xiv) Liens arising from the
rendering of a final judgment or order against the Company or any Subsidiary of
the Company that does not give rise to an Event of Default; (xv) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and the products
and proceeds thereof; (xvi) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; (xvii) Liens encumbering customary initial
deposits and margin deposits, and other Liens that are either within the general
parameters customary in the industry and incurred in the ordinary course of
business or otherwise permitted under the terms of the Bank Credit Agreement, in
each case securing Indebtedness under Interest Rate Agreements and Currency
Agreements and forward contracts, options, futures contracts, futures options or
similar agreements or arrangements designed to protect the Company or any of its
Subsidiaries from fluctuations in the price of commodities; (xviii) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its
Subsidiaries in the ordinary course of business in accordance with the past
practices of the Company and its Subsidiaries prior to July 28,
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1993; (xix) Liens on or sales of receivables; (xx) Liens on assets of Restricted
Subsidiaries permitted by the Bank Credit Agreement as in effect on July 28,
1993 and other such Liens that are not materially more restrictive (in terms of,
without limitation, the amount secured by such Lien and the scope of such Lien)
than such Liens permitted by the Bank Credit Agreement; and (xxi) Liens on
assets of Restricted Subsidiaries securing Indebtedness and other obligations
permitted under clause (xiii) of Section 3.03(a).
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of preferred or preference stock of such Person
which is outstanding or issued on or after July 28, 1993, including, without
limitation, all series and classes of such preferred or preference stock.
"principal" of a debt security, including the Securities, means the
principal amount due on the Stated Maturity.
"Pueblo" means Pueblo International, Inc., a Delaware corporation,
and its successors.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Redeemable Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Securities, (ii) redeemable at the option of the
holder of such class or series of Capital Stock at any time prior to the Stated
Maturity of the Securities or (iii) convertible into or exchangeable for Capital
Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Securities; provided that any
Capital Stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require the Company to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Securities shall not
constitute Redeemable Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 3.09 or 3.11 and
such Capital Stock specifically provides that the Company will not repurchase or
redeem any such Capital Stock pursuant to such provisions prior to the Company's
repurchase of Securities required to be repurchased pursuant to the provisions
of Sections 3.09 or 3.11.
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"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which such Security is to be redeemed pursuant to this
Indenture.
"Refinancing Plan" means, collectively, the following transactions
occurring substantially concurrently with the issuance of the Securities
hereunder: (i) the repayment of all amounts due under the Bank Credit Agreement,
(ii) the execution of the amendment and restatement dated as of April 29, 1997,
of the Bank Credit Agreement and (iii) the transfer of the Company's interest in
two real estate properties to a related party in satisfaction of indebtedness in
the amount of $10 million to such related party.
"Registrar" has the meaning provided in Section 2.04 of this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company and the Initial Purchasers named therein, dated as
of April 29, 1997 relating to the Securities.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 15 or July 15 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers 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.
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"Restricted Payments" has the meaning specified in Section 3.04 of
this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.04 of this
Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary of the Company that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company or (ii) as of the end of such fiscal year,
was the owner of more than 10% of the consolidated assets of the Company, all as
set forth on the most recently available consolidated financial statements of
the Company for such fiscal year.
"Stated Maturity" means, with respect to any debt security or any
installment of interest thereon, the date specified in such debt security as the
fixed date on which any principal of such debt security or any such installment
of interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company, or by such Person and one or more other
Subsidiaries of such Person; provided that, except as the term "Subsidiary" is
used in the definition of "Unrestricted Subsidiary" described below, an
Unrestricted Subsidiary shall not be deemed to be a Subsidiary of the Company
for purposes of this Indenture.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbb), as in effect on the
date this Indenture was executed, except as provided in
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Section 8.06 of this Indenture.
"Trade Payables" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article Six of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time hereafter, or any
successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; provided that either (a) the Subsidiary
to be so designated has total assets of $1,000 or less or (b) if such Subsidiary
has assets greater than $1,000, that such designation would be permitted under
Section 3.04. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary of the Company; provided that immediately after
giving effect to such designation (1) the Company could Incur $1.00 of
additional Indebtedness under clause (i) of Section 3.03(a) and (2) no Default
or Event of Default shall have occurred and be continuing. Any such designation
by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii)
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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 at any time prior to the Stated Maturity of the
Securities, and shall also include a depositary receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, Capital Stock of
any class or kind ordinarily having the power to vote for the election of
directors of such Person.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person if all of the Common Stock or other similar equity
ownership interests (but not including Preferred Stock) in such Subsidiary
(other than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) is owned directly or indirectly by such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or
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defined by a rule of the Commission and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP:
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(vii) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the definition of GAAP set
forth above; and
(viii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A. The Securities may have notations, legends or endorsements
required by law, stock exchange agreements to which the Company is subject or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement on the Securities. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the form of the securities
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and
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provisions and to be bound thereby.
The definitive Securities shall be printed, lithographed, engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as determined
by the Officers executing such Securities, as evidenced by their execution of
such Securities.
Initial Securities offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global Securities
substantially in the form set forth in Exhibit A (the "U.S. Global Security")
deposited with, or on behalf of, the Depositary or with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the U.S.
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation S
shall be issued initially in the form of temporary certificated Securities in
registered form substantially in the form set forth in Exhibit A (the "Temporary
Offshore Global Securities"). The Temporary Offshore Global Securities will be
registered in the name of, and held by, a temporary certificate holder
designated by NationsBanc Capital Markets, Inc. until the termination of the
"restricted period" (as defined in Regulation S) with respect to the offer and
sale of the Initial Securities (the "Offshore Securities Exchange Date"). At any
time following the Offshore Securities Exchange Date, upon receipt by the
Trustee and the Company of a certificate substantially in the form of Exhibit B
hereto, the Company shall execute, and the Trustee shall authenticate and
deliver, one or more permanent certificated Securities in registered form
substantially in the form set forth in Exhibit A (the "Permanent Offshore
Physical Securities"), in exchange for the surrender of Temporary Offshore
Global Securities of like tenor and amount.
Initial Securities offered and sold other than as described in the
preceding two paragraphs shall be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in Exhibit A
(the "U.S. Physical Securities").
The Temporary Offshore Global Securities, Permanent Offshore
Physical Securities and U.S. Physical Securities are sometimes collectively
herein referred to as the "Physical Securities".
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SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, each certificate representing a
Security shall contain a legend substantially to the following effect (the
"Private Placement Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH PUEBLO XTRA INTERNATIONAL, INC. ("THE COMPANY") OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF
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COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Each U.S. Global Security, whether or not an Initial Security, shall
also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 2.07 AND 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. Two
Officers shall execute the Securities for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company
shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee or authenticating agent authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee or an authenticating agent shall authenticate
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for original issue Securities in the aggregate principal amount of $85,000,000
upon a written order of the Company signed by at least one Officer; provided
that the Trustee shall receive an Officers' Certificate and an Opinion of
Counsel of the Company in connection with such authentication of Securities.
Such order shall specify the amount of Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
the amount set forth above except as provided in Sections 2.09 and 2.10 of this
Indenture.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such authenticating agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate
of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 in original principal amount and any
integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Company will
appoint an agent for service where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company shall
cause the Registrar to keep a register of the Securities and of their transfer
and exchange (the "Security Register"). The Company may have one or more
co-registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement, with
any Agent not a party to this Indenture, which shall incorporate the terms of
the TIA and the relevant terms of this Indenture and shall not be inconsistent
with this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall give prompt written
notice to the Trustee of the name and address of any such Agent and any change
in the address of such Agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such Registrar or Paying Agent. The
Company may remove any Agent upon written notice to such Agent and the Trustee;
provided that no such removal shall become effective until (i) the acceptance of
an appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement, entered into by the Company and such successor Agent and
delivered to the Trustee, which shall
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incorporate the terms of the TIA and the relevant terms of this Indenture and
shall not be inconsistent with this Indenture or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar, or agent for service of notice and demands.
The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company initially appoints CT Corporation System as the agent for
service of notice and demands. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee on or before each
Interest Payment Date and at such other times as the Trustee may reasonably
request the names and addresses of the Holders as they appear in the Security
Register.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than
each due date of the principal and interest on any Securities, the Company shall
deposit with the Paying Agent money sufficient to pay such principal and
interest so becoming due. The Company shall require each Paying Agent other than
the Trustee to agree in writing that such Paying Agent shall hold in trust for
the benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal of and interest on the Securities (whether such money
has been paid to it by the Company or any other obligor on the Securities), and
such Paying Agent shall promptly notify the Trustee of any default by the
Company (or any other obligor on the Securities) in making any such payment. The
Company at any time may require a Paying Agent other than the Trustee 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 payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so,
the Paying Agent shall have no further liability for the money so paid over to
the Trustee. If the Company or any Subsidiary of the Company or any Affiliate of
any of them acts as Paying Agent, it will, on or before each due date of any
principal of or interest on the Securities, segregate and hold in a separate
trust fund for the benefit of the Holders a sum sufficient to pay such principal
or interest so becoming due until such sums shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will promptly notify
the Trustee of its action or failure to act.
SECTION 2.06. Transfer and Exchange. When Securities are presented
to the Registrar or a co-registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations (including
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an exchange of Initial Securities for Exchange Securities), the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met provided that no exchange of Initial Securities for
Exchange Securities shall occur until an Exchange Offer Registration Statement
shall have been declared effective by the Commission and that the Initial
Securities to be exchanged for the Exchange Securities shall be cancelled by the
Trustee. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or other similar
governmental charge payable upon exchanges pursuant to Section 2.11, 3.09, 3.11,
8.04 or 10.08 of this Indenture).
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
The Issuer shall not be required to register the transfer of or to
exchange (a) any Securities for a period of 15 days next preceding the first
mailing of notice of redemption of the Securities to be redeemed or (b) any
Securities selected, called or being called for redemption, except in the case
of any Security where public notice has been given that such Security is to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.07. Book-Entry Provisions for U.S. Global Security.
(a) The U.S. Global Security initially shall (i) be registered in
the name of Cede & Co., as nominee of the Depositary, (2) be deposited with, or
on behalf of, the Depositary or with the Trustee, as custodian for such
Depositary, and (iii) bear legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any U.S. Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the U.S. Global Security, and the Depositary may be treated
by the Company, the Trustee and
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any agent of the Company or the Trustee as the absolute owner of such U.S.
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Transfers of the U.S. Global Security shall be limited to
transfers of such U.S. Global Security in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of beneficial
owners in the U.S. Global Security may be transferred in accordance with the
rules and procedures of the Depositary and the provisions of Section 2.08. In
addition, if (i) the Company notifies the Trustee in writing that the Depositary
is no longer willing or able to act as a depositary and the Company is unable to
locate a qualified successor within 90 days or (ii) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of
Securities in the form of Physical Securities hereunder then, upon surrender by
the Global Security Holder of its Global Security, Physical Securities will be
issued to each Person that the Global Security Holder and the Depositary
identify as being the beneficial owner of the related Securities.
(c) In connection with any transfer of a portion of the beneficial
interest in the U.S. Global Security to beneficial owners pursuant to subsection
(b) of this Section, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the U.S. Global Security in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical Securities of
like tenor and amount.
(d) In connection with the transfer of the entire U.S. Global
Security to beneficial owners pursuant to subsection (b) of this Section, the
U.S. Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Security, an equal aggregate
principal amount of U.S. Physical Securities of authorized denominations.
(e) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to subsection (c) or subsection (d) of this
Section shall, except as otherwise
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provided by paragraph (a)(i)(x) and paragraph (f) of Section 2.08, bear the
applicable legend regarding transfer restrictions applicable to the U.S.
Physical Security set forth in Section 2.02.
(f) The Holder of the U.S. Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.08. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, the following additional
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to any institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) which is not a QIB (excluding Non-U.S.
Persons):
(i) The Registrar shall register the transfer of any Initial
Security, whether or not such Initial Security bears the Private Placement
Legend, if (x) the requested transfer is at least two years after the
original issue date of the Initial Securities or (y) the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit C hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
U.S. Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Security to a
QIB (excluding Non-U.S. Persons):
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(i) If the Security to be transferred consists of U.S. Physical
Securities, Temporary Offshore Global Securities or Permanent Offshore
Physical Securities, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Initial Security stating, or has otherwise
advised the Company 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 the form of Initial Security
stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Initial Security for its own account or
an account with respect to which it exercises sole investment discretion
and that it, or the Person on whose behalf it is acting with respect to
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 Company
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.
(ii) If the proposed transferee is an Agent Member, and the Initial
Security to be transferred consists of U.S. Physical Securities, Temporary
Offshore Global Securities or Permanent Offshore Physical Securities, upon
receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the U.S. Global Security in an amount equal to the principal
amount of the U.S. Physical Securities, Temporary Offshore Global
Securities or Permanent Offshore Physical Securities, as the case may be,
to be transferred, and the Trustee shall cancel the Physical Security so
transferred.
(c) Transfers by Non-U.S. Persons on or Prior to June 9, 1997. The
following provisions shall apply with respect to registration of any proposed
transfer of an Initial Security by a Non-U.S. Person on or prior to June 9,
1997:
(i) The Registrar shall register the transfer of any Initial
Security (x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto or (y) if the proposed
transferee is a QIB and the proposed transferor has checked the box
provided for on the form of Initial Security stating, or has otherwise
advised the
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Company 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 the form of Initial Security stating, or
has otherwise advised the Company and the Registrar in writing, that it is
purchasing the Initial Security for its own account or an account with
respect to which it exercises sole investment discretion and that it, or
the Person on whose behalf it is acting with respect to 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 Company 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. Unless clause (ii) below is applicable, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Temporary Offshore Physical Securities of like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures therefor, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of
the U.S. Global Security in an amount equal to the principal amount of the
Temporary Offshore Global Security to be transferred, and the Trustee
shall cancel the Temporary Offshore Global Security so transferred.
(d) Transfers by Non-U.S. Persons on or After March 10, 1997. The
following provisions shall apply with respect to any transfer of an Initial
Security by a Non-U.S. Person on or after June 9, 1997:
(i) (x) If the Initial Security to be transferred is a Permanent
Offshore Physical Security, the Registrar shall register such transfer,
(y) if the Initial Security to be transferred is a Temporary Offshore
Global Security, upon receipt of a certificate substantially in the form
of Exhibit D from the proposed transferor, the Registrar shall register
such transfer and (z) in the case of either clause (x) or (y), unless
clause (ii) below is applicable, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Permanent Offshore
Physical Securities of like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Registrar of instructions given in accordance
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with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the U.S. Global Security in an amount equal to
the principal amount of the Temporary Offshore Global Security or
Permanent Offshore Physical Security to be transferred, and the Trustee
shall cancel the Physical Security so transferred.
(e) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Security to a
Non-U.S. Person:
(i) Prior to June 9, 1997, the Registrar shall register any proposed
transfer of an Initial Security to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit D hereto from the
proposed transferor and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Temporary Offshore Global Securities
of like tenor and amount.
(ii) On and after June 9, 1997, the Registrar shall register any
proposed transfer to any Non-U.S. Person (w) if the Initial Security to be
transferred is a Permanent Offshore Physical Security, (x) if the Initial
Security to be transferred is a Temporary Offshore Global Security, upon
receipt of a certificate substantially in the form of Exhibit D from the
proposed transferor, (y) if the Initial Security to be transferred is a
U.S. Physical Security or an interest in the U.S. Global Security, upon
receipt of a certificate substantially in the form of Exhibit D from the
proposed transferor and (z) in the case of either clause (w), (x) or (y),
the Company shall execute, and the Trustee shall authenticate and deliver,
one or more Permanent Offshore Physical Securities of like tenor and
amount.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i), and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Permanent Offshore Physical Securities of like tenor and amount.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private
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Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless either (i) the
circumstances contemplated by the fifth paragraph of Section 2.01 or paragraphs
(a)(i)(x), (d)(i) or (e)(ii) of this Section 2.08 exist and the Company directs
the Trustee pursuant to an Officers' Certificate to remove such legend or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee 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.
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain as required by law copies of all letters,
notices and other written communications received pursuant to Section 2.07 or
this Section 2.08. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder claims that the Security has been
lost, destroyed or wrongfully taken, then, in the absence of notice to the
Issuer or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall issue and the Trustee shall authenticate a
replacement Security of like tenor and principal amount. If required by the
Trustee or the Company, an indemnity bond must be furnished by the Holder that
is sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge such Holder for its expenses in
replacing a Security. In case any such mutilated, lost, destroyed or wrongfully
taken Security has matured or is about to mature, or has been called for
redemption in full, the Company in its discretion may pay such Security instead
of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
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SECTION 2.10. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation and those
described in this Section 2.10 as not outstanding. A Security does not cease to
be outstanding because the Company or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee receives proof satisfactory to it that
the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on a maturity date money sufficient to pay Securities payable on
that date, then on and after that date such Securities cease to be outstanding
and interest on them shall cease to accrue.
SECTION 2.11. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall be entitled to
the same benefits under this Indenture as definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee and no other Person shall cancel all Securities
surrendered for transfer, exchange, payment (including any repurchase) or
cancellation and shall destroy them in accordance with its normal procedure. The
Company may not issue new Securities to replace Securities it has paid in full.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and the Trustee shall use
CUSIP numbers in notices of exchange as a convenience to Holders; provided that
any such notice shall state that no representation is made by the Trustee as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of exchange and that reliance may be placed only on the
other identification numbers printed on the Securities.
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SECTION 2.14. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect to
the payment of any defaulted interest, shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest to be paid. Nothing herein shall prohibit the Company from
paying defaulted interest in any lawful manner.
SECTION 2.15. Treasury Securities Deemed Outstanding. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, amendment, supplement, waiver or consent, Securities
owned by the Company or an Affiliate of the Company or any of its Affiliates
shall be deemed not to be outstanding, except that, for the purpose of
determining whether a Responsible Officer shall be protected in relying on any
such direction, waiver or consent, only Securities which a Responsible Officer
actually knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in any
such determination.
SECTION 2.16. Securities Obligations of Company Only. The Holders
acknowledge, by their acceptance of Securities, that such Securities are solely
obligations of the Company and that the Indebtedness under the Bank Credit
Agreement constitutes obligations of one or more of the Company's Subsidiaries.
ARTICLE THREE
COVENANTS
SECTION 3.01. Payment of Securities. The Company shall pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. An installment of principal or
interest shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company, a Subsidiary of the Company, or any Affiliate of any of
them) holds on that date money designated for and sufficient to pay the
installment. If the Company, any Subsidiary of the Company, or any Affiliate of
any of them, acts as Paying Agent, an installment
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of principal or interest shall be considered paid on the due date if the entity
acting as Paying Agent complies with the last sentence of Section 2.05 of this
Indenture.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
therefor indicated in the Securities.
SECTION 3.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will 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 Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 9.02 of this Indenture.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the office of the Trustee,
located in the Borough of Manhattan, The City of New York as such office of the
Company in accordance with Section 2.04 of this Indenture.
SECTION 3.03. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur any Indebtedness
except:
(i) Indebtedness of the Company if, after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Consolidated Fixed Charge Ratio of the Company
would be greater than 2.25:1;
(ii) Indebtedness under the Bank Credit Agreement in an aggregate
principal amount not to exceed (x) $175,000,000 less (y) the amount of any
reduction in the commitments thereunder
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pursuant to clause (B) in the second paragraph of Section 3.09(a));
(iii) Indebtedness existing on July 28, 1993;
(iv) Indebtedness issued in exchange for, or the net proceeds of
which are used to exchange, refinance or refund, outstanding Indebtedness
of the Company or any of its Restricted Subsidiaries in an amount (or, if
such new Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration
thereof, with an original issue price) not to exceed the amount so
exchanged, refinanced or refunded (plus premiums, accrued interest, fees
and expenses); provided that (A) the Indebtedness issued does not mature
prior to the Stated Maturity of, and does not have an Average Life shorter
than, the Average Life of the Indebtedness being so exchanged, refinanced
or refunded and (B) in case the Indebtedness to be exchanged, refinanced
or refunded is expressly subordinated in right of payment to the
Securities, (1) such Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such Indebtedness is issued, is
expressly made subordinate in right of payment to the Securities at least
to the extent that the Indebtedness to be exchanged, refinanced or
refunded is subordinated in right of payment to the Securities, (2) such
Indebtedness, determined as of the date of its Incurrence, does not mature
prior to one year after the Stated Maturity of the Securities and (3) the
Average Life of such Indebtedness, determined as of the date of its
Incurrence, is at least one year longer than the remaining Average Life of
the Securities;
(v) Indebtedness of the Company to any Restricted Subsidiary that is
a Wholly Owned Subsidiary of the Company, or of a Restricted Subsidiary to
the Company or to any other Restricted Subsidiary that is a Wholly Owned
Subsidiary of the Company;
(vi) Acquired Indebtedness; provided that, at the time of the
Incurrence thereof, the Company could Incur at least $1.00 of the
Indebtedness under clause (i) of this Section 3.03(a); and refinancings
thereof; provided further that any refinancing Indebtedness may not be
Incurred by any Person other than the Company or the Restricted Subsidiary
that is the obligor on such Acquired Indebtedness;
(vii) Indebtedness in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided in the ordinary course of
business;
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(viii) Indebtedness under Currency Agreements and Interest Rate
Agreements; provided that, in the case of Currency Agreements that relate
to other Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company or any Subsidiary outstanding at any time
other than as a result of fluctuations in foreign currency exchange rates
or by reason of fees, indemnities and compensation payable thereunder;
(ix) Indebtedness arising from Guarantees or letters of credit,
surety bonds or performance bonds securing any obligations of the Company
or any Subsidiary pursuant to agreements providing for indemnification,
adjustment of purchase price or similar obligations Incurred in connection
with the disposition of any business, assets or Subsidiary of the Company,
in a principal amount not to exceed the gross proceeds actually received
by the Company or any Subsidiary in connection with such disposition (but
excluding Guarantees of Indebtedness Incurred by any Person acquiring all
or any portion of such business, assets or Subsidiary of the Company for
the purpose of financing such acquisition);
(x) Indebtedness incurred to finance capital expenditures in a
principal amount not to exceed, together with other Indebtedness Incurred
pursuant to this clause (x) during the preceding 12-month period, $10
million in the aggregate;
(xi) Incurrence of Capitalized Leases in an amount required to be
capitalized on the Company's consolidated balance sheet not to exceed,
together with other Indebtedness Incurred pursuant to this clause (xi), $3
million during the preceding 12-month period or $12.5 million since July
28, 1993;
(xii) additional Indebtedness under the Bank Credit Agreement in an
aggregate principal amount not to exceed $50 million; and
(xiii) Indebtedness of the Company not otherwise permitted by this
Section 3.03(a), in an aggregate amount not to exceed $25 million at any
time outstanding and Indebtedness of Restricted Subsidiaries not otherwise
permitted by this Section 3.03(a), in an aggregate amount not to exceed
$25 million at any time outstanding.
(b) For purposes of determining any particular amount of
Indebtedness under this Section 3.03, Guarantees of, or obligations with respect
to letters of credit supporting, Indebtedness otherwise included in the
determination of such particular amount shall not be included. For purposes of
determining compliance with
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this Section 3.03, (A) in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the above
clauses, the Company, in its sole discretion, shall classify such item of
Indebtedness and shall only be required to include the amount and type of such
Indebtedness in one of such clauses and (B) the amount of Indebtedness issued at
a price that is less than the principal amount thereof shall be equal to the
amount of the liability in respect thereof determined in conformity with GAAP.
SECTION 3.04. Limitation on Restricted Payments. The Company will
not, and will not permit any Restricted Subsidiary, directly or indirectly, to
(i) declare or pay any dividend or make any distribution on any class of its
Capital Stock (other than dividends or distributions payable solely in shares of
its or such Restricted Subsidiary's Capital Stock (other than Redeemable Stock)
of the same class as such Capital Stock or in options, warrants or other rights
to acquire shares of such Capital Stock) held by Persons other than the Company
or any of its Restricted Subsidiaries which are Wholly Owned Subsidiaries, (ii)
purchase, redeem, retire or otherwise acquire for value any shares of Capital
Stock of the Company, any Restricted Subsidiary or any Unrestricted Subsidiary
(including options, warrants or other rights to acquire any shares of such
Capital Stock) held by Persons other than the Company or another Restricted
Subsidiary that is a Wholly Owned Subsidiary, (iii) make any voluntary or
optional principal payment, or voluntary or optional redemption, repurchase,
defeasance or other acquisition or retirement for value, of Indebtedness of the
Company that is expressly subordinated in right of payment to the Securities, or
(iv) make any Investment in any Affiliate (other than the Company or a
Restricted Subsidiary that is a Wholly Owned Subsidiary) (such payments or any
other actions described in clauses (i) through (iv) being collectively
"Restricted Payments") unless at the time of and after giving effect to the
proposed Restricted Payment: (a) no Default or Event of Default shall have
occurred and be continuing, (b) the Company could Incur at least $1.00 of
Indebtedness pursuant to clause (i) of Section 3.03(a) and (c) the aggregate
amount expended for all Restricted Payments (the amount so expended, if other
than in cash, to be determined in good faith by the Board of Directors and
evidenced by a Board Resolution) after July 28, 1993 (together with any amounts
paid after such date pursuant to clauses (i), (iv) and (vi) in the following
paragraph) shall not exceed the sum of (1) 50% of the aggregate amount of
Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is
a loss, minus 100% of such amount) of the Company accrued on a cumulative basis
during the period (taken as one accounting period) beginning on August 15, 1993
and ending on the last day of the last fiscal quarter preceding the Transaction
Date plus (2) the aggregate net proceeds (including the fair market value of
noncash proceeds as determined
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in good faith by the Board of Directors, whose determination shall be evidenced
by a Board Resolution) received by the Company from the issuance and sale of its
Capital Stock (other than Redeemable Stock) to any Person other than a
Subsidiary of the Company, including an issuance or sale for cash or other
property upon the conversion of any Indebtedness of the Company subsequent to
July 28, 1993, or from the issuance of any options, warrants or other rights to
acquire Capital Stock of the Company (in each case, excluding any Redeemable
Stock or any options, warrants or other rights that are redeemable at the option
of the holder, or are required to be redeemed, prior to the Stated Maturity of
the principal of the Securities) plus (3) an amount equal to the net reduction
in Investments in Unrestricted Subsidiaries resulting from payments of principal
of or interest on Indebtedness, dividends or other transfers of assets, in each
case to the Company or any Restricted Subsidiary from any Unrestricted
Subsidiary, or from the redesignation of any Unrestricted Subsidiary as a
Restricted Subsidiary (valued in each case as provided in the definition of
"Investments"), not to exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary plus (4) $10 million.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at the date of declaration, such payment would
comply with the foregoing provision;
(ii) (A) following an initial public offering of the Common Stock of
the Company, the declaration and payment of dividends on the Common Stock
of the Company of up to 6% per annum of the net proceeds received by the
Company in such initial public offering, or (B) following an initial
public offering of the Common Stock of Holdings, the declaration and
payment of dividends to Holdings in an amount sufficient to permit
Holdings to pay dividends on its Common Stock in an amount of up to 6% per
annum of the net proceeds received by Holdings in such initial public
offering and contributed to the capital of the Company;
(iii) the purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company, Holdings
or any Restricted Subsidiary, options on any such shares or related stock
appreciation rights or similar securities held by officers or employees or
former officers or employees (or their estates or beneficiaries under
their estates) and which were issued pursuant to any stock option plan,
upon death, disability,
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retirement, termination of employment or pursuant to the terms of such
stock option plan or any other agreement under which such shares of
Capital Stock, options, related rights or similar securities were issued,
or the payment of dividends to Holdings in an amount sufficient to effect
such purchase, redemption, acquisition, cancellation or other retirement
for value by Holdings; provided that the aggregate cash consideration paid
for such purchase, redemption, acquisition, cancellation or other
retirement for value of such shares of Capital Stock, options, related
rights or similar securities after July 28, 1993 does not exceed $5
million per annum or $10 million in the aggregate;
(iv) the redemption, repurchase or other acquisition for value of
Capital Stock of the Company or any Subsidiary of the Company in exchange
for, or with the proceeds of a substantially concurrent offering of, other
shares of Capital Stock of the Company (other than Redeemable Stock);
(v) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of
payment to the Securities, including premium, if any, and accrued and
unpaid interest, in exchange for, or with the proceeds of a substantially
concurrent issuance of, Indebtedness Incurred under clause (iv) of Section
3.03(a);
(vi) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness of the Company that is subordinated
in right of payment to the securities including premium, if any, and
accrued and unpaid interest, in exchange for, or with the proceeds of a
substantially concurrent issuance of, shares of the Capital Stock of the
Company (other than Redeemable Stock);
(vii) the purchase of shares of Capital Stock of Holdings for
contributions to the pension and other employee benefit plans of the
Company and its Subsidiaries; provided that the aggregate consideration
paid for such purchases do not, in any one fiscal year of the Company,
exceed an aggregate amount of $1 million; or
(viii) the making of Investments in Unrestricted Subsidiaries in an
aggregate amount not to exceed $25 million outstanding at any time;
provided in each case, no Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof.
SECTION 3.05. Limitation on Dividend and Other Payment
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Restrictions Affecting Restricted Subsidiaries. The Company will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(ii) pay interest on or principal of any Indebtedness owed to the Company or any
other Restricted Subsidiary, (iii) make loans or advances to the Company or any
other Restricted Subsidiary or (iv) transfer any of its property or assets to
the Company or any other Restricted Subsidiary.
The foregoing provision shall not restrict or prohibit any
encumbrances or restrictions:
(i) in the Bank Credit Agreement or any other agreements in effect
on July 28, 1993;
(ii) with respect to any Person or the property or assets of such
Person, acquired by the Company or any Restricted Subsidiary and existing
prior to such acquisition, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired;
(iii) in any agreement that extends, refinances, renews or replaces
agreements containing restrictions referred to in clause (i) or (ii)
above, which encumbrances or restrictions are no less favorable in any
material respect to the Holders than those encumbrances or restrictions
that are then in effect pursuant to the agreements that are being
extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the first paragraph of this
Section 3.05, (A) restricting in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, (B) arising by virtue
of any transfer of, agreement to transfer, option or right with respect
to, or any Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C)
arising or agreed to in the ordinary course of business and that do not,
individually or in the aggregate, detract from the value of the property
or assets of the Company or any Restricted Subsidiary in any manner
material to the Company or such Restricted Subsidiary;
(v) that constitute Permitted Liens; or
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(vi) under or by reason of applicable law, rule or
regulation (including, without limitation, applicable currency control
laws and applicable state corporate statutes restricting the payment of
dividends in certain circumstances).
SECTION 3.06. Limitation on the Issuance of Capital Stock of
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, issue or sell any shares of a
Restricted Subsidiary's Capital Stock (including securities convertible into or
exchangeable for such Capital Stock or options, warrants or other rights to
purchase shares of such Capital Stock) except to the Company or another
Restricted Subsidiary that is a Wholly Owned Subsidiary of the Company.
SECTION 3.07. Limitation on Transactions with Shareholders and
Affiliates. The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) involving aggregate
consideration in excess of $10 million with any holder (or any Affiliate of such
holder) of 5% or more of any class of Capital Stock of the Company or any
Subsidiary of the Company or with any Affiliate of the Company or any Subsidiary
of the Company, except upon fair and reasonable terms no less favorable to the
Company or such Restricted Subsidiary than could be obtained in a comparable
arm's-length transaction with a Person that is not such a holder or an
Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) any transaction in the ordinary course of business between the
Company and any Restricted Subsidiary that is a Wholly Owned Subsidiary of
the Company or between Restricted Subsidiaries that are Wholly Owned
Subsidiaries of the Company;
(ii) transactions approved by a majority of the disinterested
members of the Board of Directors (if any);
(iii) any payment of moneys or issuance of securities pursuant to
employment arrangements and employee benefit plans, in each case approved
by the Board of Directors;
(iv) the payment of reasonable and customary regular fees to
directors of the Company or any Subsidiary of the Company who are not
employees of the Company or such Subsidiary of the
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Company;
(v) any payments or other transactions pursuant to any tax-sharing
agreement between the Company and any other Person with which the Company
is required or permitted to file a consolidated tax return or with which
the Company is or could be part of a consolidated group for tax purposes;
(vi) any Restricted Payments permitted by Section 3.04;
(vii) loans or advances by the Company or a Restricted Subsidiary to
employees of the Company or a Restricted Subsidiary in the ordinary course
of business;
(viii) any transaction contemplated by any stock option plan of the
Company; or
(ix) the allocation of Indebtedness and interest expense under the
Bank Credit Agreement among the Company and one or more Restricted
Subsidiaries.
SECTION 3.08. Limitation on Liens. The Company will not, and will
not permit any Restricted Subsidiary to, create, incur, assume or suffer to
exist any Lien on any asset of the Company or such Restricted Subsidiary,
without making effective provision for all of the Securities and all other
amounts due under this Indenture to be directly secured equally and ratably with
(or prior to) the obligation or liability secured by such Lien unless, after
giving effect thereto, the aggregate amount of any such obligation or liability
so secured, plus the Attributable Indebtedness for all sale-leaseback
transactions restricted as described in Section 3.10, does not exceed 10% of
Consolidated Net Tangible Assets.
The foregoing limitation does not apply to, and any computation of
Indebtedness secured under such limitation shall exclude:
(i) Liens existing on July 28, 1993;
(ii) Liens securing obligations under the Bank Credit Agreement;
(iii) Liens with respect to Acquired Indebtedness and refinancings
thereof permitted under clause (vi) of Section 3.03(a); provided that such
Liens do not extend to or cover any property or assets of the Company or
any Subsidiary of the Company other than the property or assets of the
Subsidiary acquired;
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(iv) Liens with respect to assets of a Restricted Subsidiary granted
by such Restricted Subsidiary to the Company or to a Restricted Subsidiary
that is a Wholly Owned Subsidiary of the Company to secure Indebtedness
owing to the Company or such other Restricted Subsidiary by such
Restricted Subsidiary;
(v) Liens granted in connection with the extension, renewal,
refinancing or replacement, in whole or in part, of any secured
Indebtedness permitted to be incurred under clause (iv) of Section
3.03(a); provided that such Liens do not extend to or cover any property
or assets of the Company or any Restricted Subsidiary other than the
property or assets securing the Indebtedness being refinanced;
(vi) Liens in respect of Capitalized Leases Incurred pursuant to
clause (xi) in Section 3.03(a); and
(vii) Permitted Liens.
SECTION 3.09. Limitation on Asset Sales. (a) Neither the Company nor
any Restricted Subsidiary shall consummate any Asset Sale (other than an Asset
Sale in connection with a sale-leaseback transaction complying with Section
3.10) unless (i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale having a value (including the value
of any noncash consideration, as determined in good faith by the Board of
Directors) at least equal to the fair market value (as determined in good faith
by the Board of Directors) of the shares or assets subject to such Asset Sale,
(ii) at least 80% of such consideration is in the form of cash (including, for
purposes of this clause (ii), (A) the principal amount of any Indebtedness (as
reflected on the Company's consolidated balance sheet) of the Company or any
Restricted Subsidiary for which the Company and its Restricted Subsidiaries will
cease to be liable, directly or indirectly, as a result of such Asset Sale; and
(B) securities that are promptly converted into cash) and (iii) 100% of the Net
Cash Proceeds with respect to such Asset Sale are applied by the Company or such
Restricted Subsidiary as set forth in the succeeding paragraph.
In the event and to the extent that the Net Cash Proceeds received
by the Company or any Restricted Subsidiary from one or more Asset Sales
occurring on or after July 28, 1993 in any period of 12 consecutive months
(other than Asset Sales by the Company or another Restricted Subsidiary to the
Company or another Restricted Subsidiary) exceed 15% of Consolidated Net
Tangible Assets in any one fiscal year (determined as of the date closest to the
commencement of such 12-month period for which a balance sheet of the Company
and its Subsidiaries has been prepared), then within 12 months following the
date of such event, the Company or such
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Restricted Subsidiary shall apply such excess Net Cash Proceeds (A) first, to
the extent the Company or such Subsidiary elects, to invest (or to enter into a
definitive agreement committing so to invest within 12 months after the date of
such agreement) in property or assets that (as determined in good faith by the
Board of Directors) are of a nature or type or are used in a business (or in a
company having property and assets of a nature or type, or engaged in a
business) similar or related to the nature or type of the property and assets
of, or to the business of, the Company and its Restricted Subsidiaries existing
on the date of such Asset Sale; (B) second, to the extent of the balance of such
excess Net Cash Proceeds after application in accordance with clause (A) and to
the extent the Company or such Restricted Subsidiary elects, to prepay, repay or
purchase the Existing Notes or Indebtedness of any Restricted Subsidiary;
provided that the Company or such Restricted Subsidiary shall repay such
Indebtedness and cause the related loan commitment to be permanently reduced in
an amount equal to the principal amount so prepaid, repaid or purchased and (C)
third, to the extent of the balance of such excess Net Cash Proceeds after
application in accordance with clauses (A) and (B), to make an offer to purchase
Securities as set forth below. The amount of such excess Net Cash Proceeds
required to be applied (or committed to be applied) during such 12-month period
as set forth in clause (A) or (B) of the preceding sentence and not applied as
so required by the end of such period shall constitute "Excess Proceeds."
(b) If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer
(as defined below) totals at least $10 million, the Company must, not later than
the fifteenth Business Day of such month, make an offer (an "Excess Proceeds
Offer") to purchase from the Holders on a pro rata basis an aggregate principal
amount of Securities equal to the Excess Proceeds on such date (rounded down to
the nearest $1,000), at a purchase price equal to 101% of the principal amount
of such Securities, plus, in each case, accrued interest (if any) to the date of
purchase (the "Excess Proceeds Payment").
(c) The Company shall commence an Excess Proceeds Offer by mailing a
notice to the Trustee and each Holder as of such record date as the Company
shall establish (and delivering such notice to the Trustee at least five days
prior thereto) stating:
(i) that the Excess Proceeds Offer is being made pursuant to this
Section 3.09 and that all Securities validly tendered will be accepted for
payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed) (the "Excess
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Proceeds Payment Date");
(iii) that any Security not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the Excess
Proceeds Payment, any Security accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Excess
Proceeds Payment Date;
(v) that Holders electing to have any Security purchased pursuant to
the Excess Proceeds Offer will be required to surrender such Security,
together with the form entitled "Option of the Holder to Elect Purchase"
on the reverse side of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day immediately preceding the Excess Proceeds Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Excess Proceeds Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Securities delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; provided that each Security
purchased and each new Security issued shall be in a principal amount of
$1,000 or integral multiples thereof.
At least five days prior to the date notice is mailed to each
Holder, the Company shall furnish the Trustee with an Officers' Certificate
stating the amount of the Excess Proceeds Payment.
(d) On the Excess Proceeds Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Securities or portions
thereof tendered pursuant to the Excess Proceeds Offer;
(ii) deposit one day prior to the Excess Proceeds Payment Date with
the Paying Agent money sufficient to pay the purchase price of all
Securities or portions thereof so
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accepted; and
(iii) deliver; or cause to be delivered, to the Trustee, all
Securities or portions thereof so accepted, together with an Officers'
Certificate specifying the Securities or portions thereof accepted for
payment by the Company.
The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Security equal in principal
amount to any unpurchased portion of the Security surrendered; provided that
each Security purchased and each new Security issued shall be in a principal
amount of $1,000 or integral multiples thereof.
The Company will publicly announce the results of the Excess
Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date.
For purposes of this Section 3.09, the Trustee shall act as the Paying Agent.
(e) The Company will comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in the event that the Company is required to
repurchase Securities as described above. The Trustee shall not be responsible
for determining whether compliance with such Rule 14e-1 is required or has been
satisfied.
SECTION 3.10. Limitation on Sale-Leaseback Transactions. The Company
will not, and will not permit any Restricted Subsidiary to, enter into any
sale-leaseback transaction, unless the aggregate amount of all Attributable
Indebtedness with respect to such transactions, plus all Indebtedness secured by
Liens (excluding secured obligations or liabilities that are excluded as
described in the second paragraph of Section 3.08), does not exceed 10% of
Consolidated Net Tangible Assets.
The foregoing restriction does not apply to, and any computation of
Attributable Indebtedness under such limitation shall exclude, any
sale-leaseback transaction if:
(i) the lease is for a period, including renewal rights, of not in
excess of three years;
(ii) the sale or transfer of the property is entered into prior to,
at the time of, or within 12 months after the later of the acquisition of
the property or the completion of construction thereof;
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(iii) the lease secures or relates to industrial revenue bonds;
(iv) the transaction is between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries that are Wholly Owned
Subsidiaries; or
(v) within 12 months after the sale of any Property is completed,
the Company or such Restricted Subsidiary applies an amount not less than
the net proceeds received from such sale in the manner described in the
second paragraph of Section 3.09(a).
SECTION 3.11. Repurchase of Securities upon Change of Control. (a)
Upon the Occurrence of a Change of Control, each Holder shall have the right to
require the Company to repurchase such Holder's Securities by the Company in
cash pursuant to the offer described below (the "Change of Control Offer") at a
purchase price equal to 101% of the principal amount thereof, plus accrued
interest (if any) to the date of purchase (the "Change of Control Payment").
Prior to the mailing of the notice to Holders provided for in the succeeding
paragraph, but in any event within 30 days following the occurrence of a Change
of Control, the Company covenants to (i) repay or cause to be repaid in full all
Indebtedness under the Bank Credit Agreement, or to offer to repay in full all
such Indebtedness and to repay the Indebtedness of each Bank which has accepted
such offer or (ii) obtain the requisite consents under the Bank Credit Agreement
to permit the repurchase of the Securities, as provided for in the succeeding
paragraph. The Company shall first comply with the covenant in the preceding
sentence before it shall be required to repurchase Securities pursuant to this
Section 3.11. The notice to Holders shall contain all instructions and material
necessary to enable such Holders to tender Securities.
(b) Within 30 days after the occurrence of a Change of Control, the
Company shall mail a notice to the Trustee and each Holder as of such record
date as the Company shall establish (and deliver such notice to the Trustee at
least five days prior thereto) stating:
(i) that a Change of Control has occurred, that the Change of
Control Offer is being made pursuant to this Section 3.11 and that all
Securities validly tendered will be accepted for payment;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed) (the "Change of Control Payment Date");
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(iii) that any Security not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the Change
of Control Payment, any Security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest on and after the
Change of Control Payment Date;
(v) that Holders electing to have any Security purchased pursuant to
the Change of Control Offer will be required to surrender such Security,
together with the form entitled "Option of the Holder to Elect Purchase"
on the reverse side of such Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day immediately preceding the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Securities delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; provided that each Security
purchased and each new Security issued shall be in a principal amount of
$1,000 or integral multiples thereof.
(c) On the Change of Control Payment Date, the Company shall:
(i) accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer;
(ii) deposit one day prior to the Change of Control Payment Date
with the Paying Agent money sufficient to pay the purchase price of all
Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, all
Securities or portions thereof so accepted together with an Officers'
Certificate specifying the Securities or portions thereof accepted for
payment by the Company.
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The Paying Agent shall promptly mail, to the Holders of Securities
so accepted, payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail to such Holders a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered;
provided that each Security purchased and each new Security issued shall be in a
principal amount of $1,000 or integral multiples thereof. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date. For purposes of this
Section 3.11, the Trustee shall act as Paying Agent.
(d) The Company will comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in the event that a Change of Control occurs
under this Section 3.11 and the Company is required to repurchase Securities as
described above.
SECTION 3.12. Corporate Existence. Subject to Articles Three and
Four of this Indenture, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of each Subsidiary in accordance with the respective
organizational documents of the Company and of each Subsidiary of the Company
and the material rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided that the Company shall not be required to
preserve any such right, license or franchise, or the corporate existence of any
Subsidiary of the Company, if the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries taken as a whole
and if the failure to preserve such right, license, franchise or corporate
existence shall not be adverse to any Holder.
SECTION 3.13. Payment of Taxes and Other Claims. The Company will
pay or discharge, or cause to be paid or discharged, before any penalty accrues
thereon (i) all material taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary of the Company or upon the income,
profits or property of the Company or any Subsidiary of the Company and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of the Company or any Subsidiary of the
Company; provided that the Company shall not be required to pay or discharge, or
cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been made.
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SECTION 3.14. Maintenance of Properties and Insurance. The Company
will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary of the Company and material to the Company and its
Subsidiaries taken as a whole to be maintained and kept in normal condition,
repair and working order, all as in the judgment of the Company may be necessary
for the conduct of the business of the Company in the ordinary course.
The Company will provide or cause to be provided, for itself and its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds customarily insured against by corporations similarly
situated and owning like properties in such amounts, with such deductibles and
by such methods as shall be customary for corporations similarly situated in the
industry.
SECTION 3.15. Compliance Certificates. (a) The Company shall deliver
to the Trustee, within 60 days after the end of each of the first three fiscal
quarters of each year and 120 days after the end of the last fiscal quarter of
each year, an Officers' Certificate stating whether or not the signers know of
any Default or Event of Default that occurred during such fiscal quarter. In the
case of the Officers' Certificate delivered within 120 days of the end of the
Company's fiscal year, such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this Section
3.15, such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture. If such officers know of
such a Default or Event of Default, the certificate shall describe any such
Default or Event of Default and its status. The first certificate to be
delivered pursuant to this Section 3.15(a) shall be for the first fiscal quarter
ending after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 120 days after
the end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, (ii) that they have read the
Officers' Certificate delivered to the Trustee pursuant to paragraph (a) of this
Section 3.15 for the last quarter of the fiscal year and (iii) whether, in
connection with their audit examination, anything came to their attention that
caused them to believe that the Company was not in compliance with any of the
terms, covenants, provisions or conditions of Article Three and Section 4.01 of
this Indenture as they pertain to accounting matters and, if any Default or
Event of Default has come to their attention, specifying the nature and
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period of existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason of any
failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
SECTION 3.16. Commission Reports and Reports to Holders. Within 15
days after the Company files with the Commission copies of its annual reports
and other information, documents and reports (or copies of such portions of any
of the foregoing as the Commission may by rules and regulations prescribe) that
it is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act, the Company shall file the same with the Trustee. So long as
the Securities remain outstanding, the Company shall file with the Commission
quarterly reports (containing unaudited financial statements) for the first
three quarters of each fiscal year and annual reports (containing audited
financial statements and an opinion thereon by the Company's independent
certified public accountants) that it would be required to file under Section 13
of the Exchange Act if it had a class of securities listed on a national
securities exchange and shall cause to be mailed to the Holders at their
addresses appearing in the Security Register within 15 days of when such report
would have been required to be filed under Section 13 of the Exchange Act. The
Company also shall comply with the other provisions of TIA Section 314(a).
SECTION 3.17. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and (to the extent that it may lawfully do
so) the Company 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.
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ARTICLE FOUR
SUCCESSOR CORPORATION
SECTION 4.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into the
Company (other than a merger of the Company with (but not into) a Restricted
Subsidiary that is a Wholly Owned Subsidiary of the Company with a positive
stockholder's equity determined in accordance with GAAP; provided that, in
connection with any such merger, no consideration (other than Common Stock in
the Company) shall be issued or distributed to the stockholders of the Company)
unless:
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or that acquires or leases such property and assets of
the Company shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all of the
obligations of the Company on all of the Securities and under this
Indenture;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Company (or any Person that becomes the successor obligor
on the Securities) shall have a Consolidated Net Worth equal to or greater
than the Consolidated Net Worth of the Company immediately prior to such
transaction;
(iv) immediately after giving effect to such transaction on a pro
forma basis, the Company (or any Person that becomes the successor obligor
on the Securities) shall be able to Incur at least $1.00 of additional
Indebtedness pursuant to clause (i) of Section 3.03(a); and
(v) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with
clauses (iii) and (iv)) and Opinion of Counsel, in each case stating that
such
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consolidation, merger or transfer and such supplemental indenture comply
with this provision and that all conditions precedent provided for herein
relating to such transaction have been complied with.
SECTION 4.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of the
Company in accordance with Section 4.01 of this Indenture, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such sale, conveyance, transfer, lease or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein.
ARTICLE FIVE
DEFAULT AND REMEDIES
SECTION 5.01. Events of Default. An "Event of Default" occurs with
respect to the Securities if:
(a) the Company defaults in the payment of principal of (or premium,
if any, on) any Security, when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise;
(b) the Company defaults in the payment of interest on any Security,
as and when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or under the
Securities and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the Holders of 25%
or more in aggregate principal amount of the Securities;
(d) the Company or any Restricted Subsidiary fails to make (i) a
principal payment of $10 million or more at the final (but not any
interim) Stated Maturity of any issue of Indebtedness or (ii) principal
payments aggregating $10 million or more at the final (but not any
interim) Stated Maturity of more than one issue of Indebtedness and, in
the case of clause (i), such defaulted payment shall not have been made,
waived or extended within 30 days of the payment default and, in the case
of clause (ii), all such defaulted
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payments shall not have been made, waived or extended within 30 days of
the payment default that causes the amount described in clause (ii) to
exceed $10 million;
(e) there occurs with respect to any Indebtedness of the Company or
any Restricted Subsidiary having an outstanding principal amount,
individually or in the aggregate, of $10 million or more, an event of
default that has caused the holder or holders thereof, or representatives
of such holder or holders, to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration;
(f) final judgments or orders (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company or any Restricted Subsidiary and shall not be
discharged, and there shall be any period of 30 consecutive days following
entry of the final judgment or order in excess of $10 million individually
or that causes the aggregate amount for all such final judgments or orders
outstanding against all such Persons to exceed $10 million during which a
stay of enforcement of such final judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (i) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (ii)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant
Subsidiary or for all or substantially all of the property and assets of
the Company or any Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary
and, in each case, such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(h) the Company or any Significant Subsidiary (i) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (ii) consents
to the appointment of or taking possession by a receiver,
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liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Company or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company or any Significant
Subsidiary, or (iii) effects any general assignment for the benefit of
creditors.
A Default under clause (c) is not an Event of Default until the
Trustee notifies the Company in writing, or the Holders of at least 25% of the
principal amount of the Securities outstanding notify the Company and the
Trustee in writing, of the Default and the Company does not cure the Default
within 30 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
Such notice shall be given by the Trustee if so requested in writing by the
Holders of 25% of the principal amount of the Securities then outstanding.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which constitutes an Event of Default or which with the giving of
notice or the lapse of time or both would become an Event of Default under
clause (c), (d), (e) or (f), its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 5.02. Acceleration. If an Event of Default (other than an
Event of Default specified in clause (g) or (h) above that occurs with respect
to the Company) occurs and is continuing under this Indenture, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding, by written notice to the Company (and to the Trustee if such notice
is given by such Holders (the "Acceleration Notice")), may, and the Trustee at
the request of such Holders shall, declare the entire unpaid principal of,
premium, if any, and accrued interest on the Securities to be due and payable.
Upon a declaration of acceleration, such principal, premium, if any, and accrued
interest shall become due and payable on the earlier of (x) an acceleration of
Indebtedness under the Bank Credit Agreement and (y) the fifth day following
such declaration (but only if the relevant Event of Default continues
unremedied). In the event of a declaration of acceleration because an Event of
Default set forth in clause (d) or (e) above has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if the event of default triggering such Event of Default pursuant to clause (d)
or (e) shall be remedied or cured by the company or such Restricted Subsidiary
or waived by the holders of the Indebtedness referred to in such clause within
60 days after such declaration of acceleration. If an Event of Default specified
in clause (g) or
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(h) above occurs with respect to the Company, all unpaid principal of, premium,
if any, and accrued interest on the Securities then outstanding shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of at least a majority in principal
amount of the outstanding Securities, by written notice to the Company and to
the Trustee, may waive all past Defaults or Events of Default and rescind and
annul a declaration of acceleration and its consequences if (i) all existing
Events of Default (other than the non-payment of the principal of, premium, if
any, and interest on the Securities that have become due solely by such
declaration of acceleration) have been cured or waived (subject to Section 5.04)
and (ii) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction.
SECTION 5.03. 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 interest on the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding.
SECTION 5.04. Waiver of Past Defaults. Subject to Sections 5.02,
5.07 and 8.02 of this Indenture, the Holders of at least a majority in principal
amount of the outstanding Securities, by notice to the Trustee, may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of or interest on any Security as specified in clause
(a) or (b) of Section 5.01 of this Indenture. 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 thereon.
SECTION 5.05. Control by Majority. The Holders of at least a
majority in aggregate principal amount of the outstanding Securities may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that the Trustee is
advised by counsel conflicts with law or this Indenture, that may cause the
Trustee to suffer or incur personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Securities not
joining in
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the giving of such direction.
SECTION 5.06. Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities do not give the
Trustee a direction that is inconsistent with the request.
For purposes of Section 5.05 of this Indenture and this Section
5.06, the Trustee shall comply with TIA Section 316(a) in making any
determination of whether the Holders of the required aggregate principal amount
of outstanding Securities have concurred in any request or direction of the
Trustee to pursue any remedy available to the Trustee or the Holders with
respect to this Indenture or the Securities or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 5.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal of, premium, if any, or interest on the Security on
or after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of the Holder.
SECTION 5.08. Collection Suit by Trustee. If an Event of Default in
payment of principal or interest specified in clause (a) or (b) of Section 5.01
of this Indenture occurs and is
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continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor of the Securities for
the whole amount of 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 borne by the Securities, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 5.09. 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 any other amounts due the Trustee under
Section 6.06 of this Indenture) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor of the Securities),
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, and any custodian in any such judicial proceedings
is hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 6.06 of this
Indenture. To the extent that such payment of reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel out of the
estate in any such judicial proceeding shall be denied for any reason, payment
of the same shall be secured by a first lien on, and shall be paid out of, any
and all dividends, distributions, monies, securities and other property that the
Holders may be entitled to receive in such judicial proceedings, whether in
liquidation or under any plan of reorganization, arrangement or otherwise.
Nothing herein contained shall be deemed to empower the Trustee to authorize or
consent to, or accept or adopt on behalf of any Holder, any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.10. Priorities. If the Trustee collects any money pursuant
to this Article Five, it shall pay out the money in the following order:
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First: to the Trustee for amounts due under Section 6.06 of this
Indenture;
Second: to Holders for amounts then due and unpaid for principal of
and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: to the Company or any other obligors of the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
5.10. At least 15 days prior to such record date, the Company (or upon the
failure of the Company to act, the Trustee) shall mail by first-class mail to
each Holder a notice that states the record date, the payment date and the
amount to be paid.
SECTION 5.11. 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 5.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.07 of this Indenture, or a
suit by Holders of more than 10% in principal amount of the outstanding
Securities.
SECTION 5.12. 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 such case, subject to any determination in such proceeding, the
Company, 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.
SECTION 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment
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of mutilated, destroyed, lost or wrongfully taken Securities in Section 2.09 of
this Indenture, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Five or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
ARTICLE SIX
TRUSTEE
SECTION 6.01. Rights of Trustee. (a) Subject to TIA Sections 315(a)
through (d):
(i) the Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 9.04 of this Indenture. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care;
(iv) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance
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with such request or direction;
(v) the Trustee or Paying Agent shall not be liable for interest on
any money received by it except as the Trustee or Paying Agent may agree
in writing with the Company. Money held in trust by the Trustee or Paying
Agent need not be segregated from other funds except to the extent
required by law or expressly required hereunder; and
(vi) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers; provided that the Trustee's conduct does not
constitute negligence or bad faith.
(b) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its rights or powers, if it shall have reasonable grounds
to believe that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(c) 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 6.01 and to the provisions of the TIA.
SECTION 6.02. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 6.03. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the
Securities, (ii) shall not be accountable for the Company's use of the proceeds
from the Securities and (iii) shall not be responsible for any statement in the
Indenture or in the Securities other than its certificate of authentication or
in any document issued in connection with the sale of the Securities.
SECTION 6.04. Notice of Default. If any Default or any Event of
Default occurs and is continuing and if such Default or Event of Default is
actually known by a Responsible Officer of the Trustee charged with
administration of this Indenture, the Trustee shall mail to each Holder in the
manner and to the extent provided in TIA Section 313(c) notice of the Default or
Event of Default within 45 days after it occurs, unless such Default or Event of
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Default has been cured; provided, however that, except in the case of a default
in the payment of the principal of or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Section
3.01, 5.01(a) or 5.01(b) of this Indenture or (ii) any Default or Event of
Default of which a Responsible Officer of the Trustee charged with
administration of this Indenture shall have received written notification or
obtained actual knowledge, and such notification shall not be deemed to include
receipt of information obtained in any report or other documents furnished under
Section 3.17 of this Indenture, which reports and documents the Trustee shall
have no duty to examine.
SECTION 6.05. Reports by Trustee to Holders. Within 60 days after
each April 1, beginning with April 1, 1998, the Trustee shall mail to each
Holder as provided in TIA Section 313(c) a brief report dated as of such April 1
if required by TIA Section 313(a).
SECTION 6.06. Compensation and Indemnity. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part in connection with the administration of this Indenture
and its duties under this Indenture and the Securities, including the costs and
expenses of enforcing this Indenture and of defending itself against any claim
or liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Securities. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have
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separate counsel and the Company shall pay reasonable fees and expenses of such
counsel. The Company need not pay for any settlements made without its consent;
provided that such consent shall not be unreasonably withheld. The Company need
not reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 6.06,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of and interest on the Securities.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of Section 5.01
of this Indenture, the expenses and the compensation for the services will be
intended to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 6.07. Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 6.07.
The Trustee may resign by so notifying the Company in writing at
least 30 Business Days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee in writing and (subject to the
following paragraph) may appoint a successor Trustee with the consent of the
Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 6.09 of this Indenture;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the Trustee
or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Securities may appoint a
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successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
6.06 of this Indenture, (i) the retiring Trustee shall transfer all property
held by it as Trustee to the successor Trustee, (ii) the resignation or removal
of the retiring Trustee shall become effective and (iii) 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
Holder.
If the Trustee fails to comply with Section 6.09 of this Indenture,
any Holder who satisfies the requirements of TIA Section 310(b) may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
6.07, the company's obligations under Section 6.06 of this Indenture shall
continue for the benefit of the retiring Trustee.
SECTION 6.08. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking,
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 6.09. Eligibility. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $25,000,000 as set forth
in its most recent published annual report of condition.
SECTION 6.10. Money Held in Trust. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree with
the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under
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Article Seven of this Indenture.
ARTICLE SEVEN
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's Obligations. Except as
otherwise provided in this Section 7.01, the Company may terminate its
obligations under the Securities and this Indenture if:
(i) all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities that have been replaced or
Securities that are paid pursuant to Section 3.01 of this Indenture or
Securities for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Company, as provided in Section
7.05 of this Indenture) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities mature within one year or all of them are to
be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption, (B) the Company
irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the
benefit of the Holders for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal and interest on the
Securities to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereunder, (C) no Default or Event of Default
with respect to the Securities shall have occurred and be continuing on
the date of such deposit, (D) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound and (E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's
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obligations under Section 6.06 of this Indenture shall survive. With respect to
the foregoing clause (ii), the Company's obligations in Sections 2.03, 2.04,
2.05, 2.06, 2.09, 2.14, 3.01, 3.02, 6.06, 6.07, 7.04, 7.05 and 7.06 of this
Indenture shall survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 6.06, 7.05 and 7.06 of
this Indenture shall survive. After any such irrevocable deposit, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
SECTION 7.02. Defeasance and Discharge of Indenture. The Company
will be deemed to have paid and will be discharged from any and all obligations
in respect of the Securities on the 123rd day after the date of the deposit
referred to in clause (A) of this Section 7.02, and the provisions of this
Indenture will no longer be in effect with respect to the Securities, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same, except as to (i) rights of registration of transfer and
exchange, (ii) substitution of, apparently mutilated, defaced, destroyed, lost
or stolen Securities, (iii) rights of Holders to receive payments of principal
thereof and interest thereon, (iv) the Company's obligations under Section 3.02,
(v) the rights, obligations and immunities of the Trustee hereunder and (vi) the
rights of the Holders as beneficiaries of this Indenture with respect to the
property so deposited with the Trustee payable to all or any of them; provided
that the following conditions shall have been satisfied:
(A) with reference to this Section 7.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.09 of this
Indenture) and conveyed all right, title and interest for the benefit of
the Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of, premium, if any, and interest,
if any, on the Securities, and dedicated solely to, the benefit of the
Holders, in and to (1) money in an amount, (2) U.S. Government Obligations
that, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide, not later than one day before
the due date of any payment referred to in this clause (A), money in an
amount or (3) a combination thereof in an amount sufficient to pay and
discharge, after payment of all federal, state and local taxes or other
charges and
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assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and interest on the outstanding Securities at the Stated
Maturity of such principal or interest; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of
such U.S. Government Obligations to the payment of such principal,
premium, if any, and interest with respect to the Securities;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(C) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or during the period ending on the
123rd day after such date of deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Company received from the Internal Revenue Service
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of its
option under this Section 7.02 and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would
have been the case if such option had not been exercised or (y) an Opinion
of Counsel to the same effect as the ruling described in clause (x) above,
and (2) an Opinion of Counsel to the effect that (x) the creation of the
defeasance trust does not violate the Investment Company Act of 1940 and
(y) after the passage of 123 days following the deposit (except, with
respect to any trust funds for the account of any Holder who may be deemed
to be an "insider" for purposes of the United States Bankruptcy Code,
after one year following the deposit), the trust funds will not be subject
to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced by
or against the Company under either such statute, and either (I) the trust
funds will no longer remain the property of the Company (and therefore
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally) or (II) if a court were to rule under any such law in any case
or proceeding that the trust funds remained property of the Company, (a)
assuming such trust funds remained in the possession of the Trustee prior
to such court ruling, to the extent not paid to the Holders,
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the Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable in
bankruptcy or otherwise except for the effect of Section 552(b) of the
United States Bankruptcy Code on interest on the trust funds accruing
after the commencement of a case under such statute and (b) the Holders
will be entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding;
(E) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an opinion of
Counsel to the effect that the Securities will not be delisted as a result
of such deposit, defeasance and discharge; and
(F) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day
period from the date of the deposit referred to in clause (A) above, none of the
Company's obligations under this Indenture shall be discharged. Subsequent to
the end of such 123-day period with respect to this Section 7.02, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.09, 2.14, 3.01, 3.02, 6.06,
6.07, 7.05 and 7.06 of this Indenture shall survive until the Securities are no
longer outstanding. Thereafter, only the Company's obligations in Sections 6.06,
7.05 and 7.06 of this Indenture shall survive. If and when a ruling from the
Internal Revenue Service or an Opinion of Counsel referred to in clause (D)
above is able to be provided specifically without regard to, and not in reliance
upon, the continuance of the Company's obligations under Section 3.01 of this
Indenture, then the Company's obligations under such Section 3.01 of this
Indenture shall cease upon delivery to the Trustee of such ruling or Opinion of
Counsel and compliance with the other conditions precedent provided for herein
relating to the defeasance contemplated by this Section 7.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 7.03. Defeasance of Certain Obligations. The Company may
omit to comply with any term, provision or condition
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set forth in clauses (iii) and (iv) of Section 4.01 and Sections 3.03 through
3.16 of this Indenture, and clause (c) of Section 5.01 of this Indenture with
respect to clauses (iii) and (iv) of Section 4.01 and Sections 3.03 through 3.16
of this Indenture, and clauses (d), (e) and (f) of Section 5.01 of this
Indenture shall be deemed not to be Events of Default, in each case with respect
to the outstanding Securities 123 days after the deposit referred to in clause
(i) below if:
(i) with reference to this Section 7.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.09 of this
Indenture) and conveyed all right, title and interest to the Trustee for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust funds
in trust, specifically pledged to the Trustee for the benefit of the
Holders as security for payment of the principal of, premium, if any, and
interest, if any, on the Securities, and dedicated solely to, the benefit
of the Holders, in and to (A) money in an amount, (B) U.S. Government
Obligations that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide, not later than one
day before the due date of any payment referred to in this clause (i),
money in an amount or (C) a combination thereof in an amount sufficient to
pay and discharge, after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee,
the principal of, premium, if any, and interest on the outstanding
Securities on the Stated Maturity of such principal or interest; provided
that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to the payment
of such principal, premium, if any, and interest with respect to the
Securities;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, (B) the Holders have a valid
first-priority security interest in the trust funds, (C) the Holders will
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not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred and (D) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider" for purposes of
the United States Bankruptcy Code, after one year following the deposit),
the trust funds will not be subject to the effect of Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company under either
such statute, and either (1) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (2) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Company, (x) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the
Holders, a valid and perfected security interest in such trust funds that
is not avoidable in bankruptcy or otherwise except for the effect of
Section 552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under such statute
and (y) the Holders will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are used in such
case or proceeding;
(v) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit, defeasance and discharge will not
cause the Securities to be delisted; and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.03 have been complied with.
SECTION 7.04. Application of Trust Money. Subject to Section 7.06 of
this Indenture, the Trustee or Paying Agent shall hold in trust money or U.S.
Government obligations deposited with it pursuant to Section 7.01, 7.02 or 7.03
of this Indenture, as the case may be, and shall apply the deposited money and
the
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money from U.S. Government Obligations in accordance with the Securities and
this Indenture to the payment of principal of, premium, if any, and interest on
the Securities; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 7.05. Repayment to Company. Subject to Sections 6.06, 7.01,
7.02 and 7.03 of this Indenture, the Trustee and the Paying Agent shall promptly
pay to the Company upon request set forth in an Officers' Certificate any excess
money held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years; provided that
the Trustee or the Paying Agent shall cause to be published at the expense of
the Company once in a newspaper of general circulation in The City of New York
or mail to each Holder entitled to such money at such Holder's address (as set
forth in the Security Register) notice that such money remains unclaimed and
that after a date specified therein (which shall be at least 30 days from the
date of such publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to such money must look to the Company for payment as general creditors
unless an applicable law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
SECTION 7.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 7.01, 7.02 or 7.03 of this Indenture, as the case may be, by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 7.01, 7.02 or 7.03 of this Indenture, as the case may be (such revival
and reinstatement to be deemed effective as of the date on which such deposit
had occurred pursuant to Section 7.01, 7.02 or 7.03 of this Indenture, as the
case may be), 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
7.01, 7.02 or 7.03 of this Indenture, as the case may be; provided that, if the
Company has made any payment of principal of, premium, if any, or interest on
any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or
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Paying Agent.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders. The Company, when
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or the consent
of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Four of this Indenture;
(3) to comply with the obligation to secure the Securities pursuant
to Section 3.08 of this Indenture;
(4) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(6) to make any change that does not adversely affect the rights of
any Holder.
SECTION 8.02. With Consent of Holders. Subject to Sections 5.04 and
5.07 of this Indenture and without prior notice to the Holders, the Company,
when authorized by its Board of Directors (as evidenced by a Board Resolution),
and the Trustee may amend this Indenture and the Securities with the written
consent of the Holders of a majority in principal amount of the Securities then
outstanding, and the Holders of a majority in principal amount of the Securities
then outstanding by written notice to the Trustee may waive future compliance by
the Company with any provision of this Indenture or the Securities.
Notwithstanding the provisions of this Section 8.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 5.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or adversely affect any right of
repayment at the option of any Holder of any Security, or change any place
of payment where, or the currency in which, any Security or the
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interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of the outstanding
Securities required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain defaults
and their consequences provided for in this Indenture;
(iii) waive a default in the payment of principal of or interest on,
any Security; or
(iv) modify any of the provisions of this Section 8.02, except to
increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 8.03. Revocation and Effect of Consent. Until an amendment
or waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Securities.
The Company may, but shall not be obligated to, fix a
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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 last two sentences of the immediately preceding paragraph,
those persons who were Holders at such record date (or their duly designated
proxies) and only those 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.
After an amendment, supplement or waiver becomes effective as set
forth in Sections 8.01 and 8.02, it shall bind every Holder and every subsequent
Holder of a Security in the manner set forth herein.
SECTION 8.04. Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security, the Trustee may
require the Holder to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security
thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 8.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Eight is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the rights
of the Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.06. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article Eight shall conform to
the requirements of the TIA as then in effect.
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ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. Trust Indenture Act of 1939. Upon the issuance of the
Exchange Securities, if any, or the effectiveness of the Exchange Offer
Registration Statement (as defined herein) or, under certain circumstances, the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture will be subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 9.02. Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to the Company:
Pueblo Xtra International, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company
of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust and Agency Division
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to
him at his address as it appears on the Security Register by first class mail
and shall be sufficiently given to him if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. Except for
a notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
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SECTION 9.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate 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
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 9.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that the person making such certificate or opinion
has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with, and such other
opinions at the Trustee may reasonably request; provided that, with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 9.05. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 9.06. Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Stated Maturity or date of maturity of any
Security shall not be a Business Day at any place of payment, then payment of
principal of or interest on such Security, as the case may be, need not be made
on such date, but may be made on the next succeeding Business Day at such place
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of payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity or date of maturity of such
Security; provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Stated Maturity or date of
maturity, as the case may be.
SECTION 9.07. Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities. The Trustee, the Company and the
Holders agree 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 Securities.
SECTION 9.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 9.09. No Recourse Against Others. No recourse for the
payment of the principal of, premium, if any, or interest on any of the
Securities, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, or in any of the Securities, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future shareholder, officer,
director, employee or controlling person, as such, of the company or of any
successor Person, either directly or through the Company or any successor
Person, 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 all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
SECTION 9.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 9.11. Duplicate Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 9.12. Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or
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unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 9.13. Table of Contents, Headings, Etc. The Table of
Contents 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 and provisions
hereof.
ARTICLE TEN
REDEMPTION
SECTION 10.01. Right of Redemption. The Securities may be redeemed
at the election of the Company, in whole or in part, at any time on or after
August 1, 1998 and prior to maturity, at the Redemption Prices specified in the
form of Securities annexed hereto as Exhibit A, plus accrued interest to the
Redemption Date.
SECTION 10.02. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date and the principal amount of Securities
to be redeemed.
The Company shall give each notice provided for in this Section
10.02 in an Officers' Certificate at least 45 days before the Redemption Date
(unless a shorter period shall be satisfactory to the Trustee).
SECTION 10.03. Selection of Securities to Be Redeemed. If less than
all of the Securities are to be redeemed at any time, the Trustee shall select
the Securities to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the securities are
listed or, if the Securities are not listed on a national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee in its sole
discretion shall deem fair and appropriate; provided that no Securities of
$1,000 in principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. Securities in denominations of $1,000
in principal amount may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 in principal amount or any integral
multiple thereof) of the principal of Securities that have
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denominations larger than $1,000 in principal amount. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company and
the Registrar promptly in writing of the Securities or portions of Securities to
be called for redemption.
SECTION 10.04. Notice of Redemption. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first class mail to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(v) that the redemption does not violate any agreement binding upon
the Company;
(vi) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders
is to receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Securities to the Paying Agent;
(vii) that, if any Security is being redeemed in part, the portion
of the principal amount (equal to $1,000 in principal amount or any
integral multiple thereof) of such Security to be redeemed and that, on
and after the Redemption Date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion
thereof will be reissued; and
(viii) that, if any Security contains a CUSIP number as provided in
Section 2.13 of this Indenture, no representation is being made as to the
correctness of the CUSIP number either as printed on the Securities or as
contained in the notice of redemption and that reliance may be placed only
on the other identification numbers printed
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on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. Concurrently with the
giving of such notice by the Company to the Holders, the Company shall deliver
to the Trustee an Officers' Certificate stating that such notice has been given.
SECTION 10.05. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price. Upon surrender of any
Securities to the Paying Agent, such Securities shall be paid at the Redemption
Price, plus accrued interest to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed,
whether or not the Holder receives the notice. In any event, failure to give
such notice, or any defect therein, shall not affect the validity of the
proceedings for the redemption of the Securities.
SECTION 10.06. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall segregate and hold in trust as
provided in Section 2.05 of this Indenture) money sufficient to pay the
Redemption Price of and accrued interest on all Securities to be redeemed on
that date other than Securities or portions thereof called for redemption on
that date that have been delivered by the Company to the Trustee for
cancellation.
SECTION 10.07. Payment of Securities Called for Redemption. If
notice of redemption has been given in the manner provided above, the Securities
or portion of Securities specified in such notice to be redeemed shall become
due and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Securities at the
Redemption Price and accrued interest to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Securities), such Securities shall cease to accrue interest.
Upon surrender of any Security for redemption in accordance with a notice of
redemption, such Security shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders registered as such at the
close of business on the relevant Regular Record Date.
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SECTION 10.08. Securities Redeemed in Part. Upon surrender of any
Security that is redeemed in part, the Trustee shall authenticate for the Holder
a new Security equal in principal amount to the unredeemed portion of such
surrendered Security.
88
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
PUEBLO XTRA INTERNATIONAL,
INC., as Issuer
By /s/ Xxxxxxx X. Xxxx, III
--------------------------------------------
Name: Xxxxxxx X. Xxxx, III
Title: President and Chief Executive Officer
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
00
XXXXX XX XXX XXXX )
) ss
COUNTY OF NEW YORK )
On this __th day of April, before me personally came ______________,
to me known, who, being by me duly sworn, did depose and say that he resides
at______________________________________________________________________________
_______________________________, that he is ________________________ of Pueblo
Xtra International, Inc., one of the corporations described in and that executed
the above instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
On this __th day of April, before me personally came ______________,
to me known, who, being by me duly sworn, did depose and say that he resides at
________________________________________________________________________________
_______________________________________________________________________________,
that he is _____________ of United States Trust Company of New York, one of the
entities described in and that executed the above instrument; and that he signed
his name thereto by authority of the by-laws of United States Trust Company of
New York.
Notary Public
(Notarial Seal)
90
EXHIBIT A
(FACE OF NOTE)
PUEBLO XTRA INTERNATIONAL, INC.
9 1/2% Series [B]* [C]** Senior Note Due 2003
No. [CUSIP] _______
$
The following information is supplied for purposes of Sections 1273
and 1275 of the Internal Revenue Code:
Original issue discount
Issue Date: April 29, 1997 under Section 1273 of the Internal
Revenue Code (for each $1,000
Yield to maturity for period principal amount at maturity):
from Issue Date to August 1, $____
2003: ___% (rounded to two
decimal places), compounded Issue Price (for each $1,000
semiannually on February 1 and principal amount at maturity):
August 1 commencing August __, $____
1997 (computed without giving
effect to the additional
payments of interest in the
event the issuer fails to
commence the exchange offer
and fails to cause the shelf
registration statement to be
declared effective, each as
referred to on the reverse
hereof)
PUEBLO XTRA INTERNATIONAL, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, promises to pay to
____________________, or registered assigns, the principal sum of
____________________ Dollars, on August 1, 2003.
Interest Payment Dates: February 1 and August 1, commencing August
1, 1997.
Regular Record Dates: January 15 and July 15.
--------
* Include only for Initial Securities.
** Include only for Exchange Securities.
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Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: PUEBLO XTRA INTERNATIONAL, INC.
By
Title:
By
Title:
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(Form of Trustee's Certificate of Authentication)
This is one of the 9 1/2% Series [B]* [C]** Senior Notes Due 2003 described in
the within-mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By
Authorized Signature
--------
* Include only for Initial Securities.
** Include only for Exchange Securities.
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(REVERSE SIDE OF NOTE)
PUEBLO XTRA INTERNATIONAL, INC.
9 1/2% Series [B]* [C]** Senior Note Due 2003
1. Principal and Interest.
The Company will pay the principal of this Note on August 1, 2003.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of [9 1/2%
per annum (subject to adjustment as provided below)]* [9 1/2% per annum, except
that interest accrued on this Note pursuant to the penultimate paragraph of this
Section 1 for periods prior to the applicable Exchange Date (as such term is
defined in the Registration Rights Agreement referred to below) will accrue at
the rate or rates borne by the Notes from time to time during such periods].**
Interest will be payable semiannually (to the holders of record of
the Notes at the close of business on January 15 or July 15 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
August 1, 1997.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated April 29, 1997, between the Company and the
Initial Purchasers named therein (the "Registration Rights Agreement"). In the
event that either (a) the Exchange Offer Registration Statement (as such term is
defined in the Registration Rights Agreement) is not filed with the Securities
and Exchange Commission on or prior to the 30th calendar day following the date
of original issue of the Notes or (b) the Exchange Offer (as such term is
defined in the Registration Rights Agreement) is not consummated or a Shelf
Registration Statement (as such term is defined in the Registration Rights
Agreement) is not declared effective on or prior to the 120th calendar day
following the date of original issue of the Notes, the interest rate borne by
this Note shall be increased by 0.25% per annum for the first 30 days following
the 30-day period referred to in clause (a) above or the first 90 days following
the 120-day period referred to in clause (b) above. Such interest will be
increased by an additional 0.25% per annum at the beginning of each subsequent
30-day period in
--------
* Include only for Initial Securities.
** Include only for Exchange Securities.
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the case of clause (a) above or 90-day period in the case of clause (b) above;
provided, however, that in no event will the interest rate borne by the Notes be
increased by more than 1.50% per annum. Upon the filing of the Exchange Offer
Registration Statement, the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be, the
interest rate borne by this Note from the date of such filing, consummation or
effectiveness, as the case may be, will be reduced to the original interest rate
set forth above; provided, however, that, if after such reduction in interest
rate, a different event specified in clause (a) or (b) above occurs, the
interest rate may again be increased pursuant to the foregoing provisions.]*
Interest on the Notes will accrue from the most recent date to which
interest has been paid [on this Note or the Note surrendered in exchange
herefor]** or, if no interest has been paid, from April 29, 1997; provided that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at the rate of 9 1/2%
per annum.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 1 and August 1 to the persons who
are Holders (as reflected in the Security Register at the close of business on
such January 15 and July 15 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such record date; provided that, with respect to
the payment of principal, the Company will make payment to the Holder that
surrenders this Note to a Paying Agent on or after August 1, 2003. The Company
will pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts. However, the
Company may pay principal and interest by its check
--------
* Include only for Initial Securities.
** Include only for Exchange Securities.
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A-6
payable in such money. It may mail an interest check to a Holder's registered
address (as reflected in the Security Register). If a payment date is a date
other than a Business Day at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day and no interest shall
accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice. The Company,
any Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of April
29, 1997 (the "Indenture"), between the Company and United States Trust Company
of New York, as trustee (the "Trustee"). Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Notes are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are general obligations of the Company. The Indenture
limits the original aggregate principal amount of the Notes to $85,000,000.
5. Optional Redemption.
The Company may redeem all of the Notes at any time or any portion
of the Notes from time to time, on or after August 1, 1998, at a redemption
price equal to the applicable percentage of the then outstanding principal
amount thereof set forth below, plus accrued interest to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date), if redeemed during the 12-month period commencing on or after
August 1 in the years set forth below:
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Redemption
Year Price
---- ----------
1998............. 104.750%
1999............. 102.375%
and on or after August 1, 2000, at 100% of the principal amount, plus accrued
interest to the Redemption Date.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder to be redeemed at his
last address as it appears in the Security Register. Notes in denominations
larger than $1,000 may be redeemed in part. On and after the Redemption Date,
interest ceases to accrue on Notes or portions of Notes called for redemption,
unless the Company defaults in the payment of the Redemption Price.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 in principal amount 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.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent will pay the money back to the
Company. After that, Holders entitled to the money must look to the Company for
payment, unless an abandoned property law designates another person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
10. Discharge Prior to Maturity.
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A-8
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of the Notes and
interest thereon (a) to redemption or maturity, the Company will be discharged
from the Indenture and the Notes, except, in certain circumstances, for certain
sections thereof, and (b) to the Stated Maturity of such principal and interest,
the Company will be discharged from certain covenants set forth in the
Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented 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 with the consent of the Holders of a
majority in principal amount of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the Indenture
or the Notes to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes and make any change that does not adversely affect the rights
of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries, among other things, to pay dividends,
create Liens, sell assets, engage in transactions with Affiliates or incur
Indebtedness. At the end of each fiscal quarter, the Company must report to the
Trustee on compliance with such limitations.
13. Successor Corporations.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes and the Indenture, the predecessor person
will be released from those obligations.
14. Defaults and Remedies.
An Event of Default is: a default in payment of principal on the Notes; default
in the payment of interest on the Notes for 30 days; failure by the Company for
30 days after notice to it to comply with any of its other agreements in the
Indenture; certain events of bankruptcy or insolvency; certain final judgments
which
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remain undischarged; and certain events of default on other Indebtedness of the
Company or one or more of its Restricted subsidiaries.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes may declare all the Notes to be due and payable as provided in the
Indenture. If a bankruptcy or insolvency default with respect to the Company
occurs and is continuing, the Notes automatically become due and payable.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
at least a majority in principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to TIA Sections 310(b) and 311.
16. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator as such,
past, present or future, of the Company or any successor corporation shall have
any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
17. Authentication.
This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this Note.
00
X-00
00. Obligation of Company Only.
The Holder of this Note acknowledges, by acceptance hereof, that
this Note is solely an obligation of the Company and that the Indebtedness under
the Bank Credit Agreement constitutes obligations of one or more of the
Company's subsidiaries.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Pueblo Xtra
International, Inc., 0000 X.X. 00xx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000,
Attention: Chief Financial Officer.
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ASSIGNMENT
I or we assign and transfer this Note to:
Please insert social security or other identifying number of assignee
Print or type name, address and zip code of assignee and irrevocably
appoint
, as agent, to transfer this Note on the
books of
the Company. The agent may substitute another to act for him.
Dated _____________________
Signed _____________________
(Sign exactly as name appears on the other side of the Note)
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
April 29, 1999 the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, 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
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A-12
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 other 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 Section 2.08 of the Indenture shall have
been satisfied.
Date: ____________________ _________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
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 of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an
executive officer
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A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 3.09 or 3.11 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 3.09 or 3.11 of the Indenture, state the amount (in
principal amount) which must be an integral multiple of $1,000:
$________________________.
Date: Your Signature:
(Sign exactly as your name appears on the other side of this Note)
*Signature Guarantee:
--------
* Signature must be guaranteed by an institution which falls within the
definition of "Eligible Guarantor Institution" as such term is defined in
Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
103
Exhibit B
Form of Certificate
to Be Delivered upon
Termination of Restricted Period
On or after May __, 1997
Pueblo Xtra International, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
c/o
United States Trust Company
of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Re: Pueblo Xtra International, Inc. (the "Company")
9 1/2% Series B Senior Notes Due 2003 (the "Notes")
Ladies and Gentlemen:
This letter relates to $________ principal amount of Notes
represented by the temporary global note certificate (the "Temporary
Certificate"). Pursuant to Section 2.02 of the Indenture dated as of April 29,
1997 relating to the Notes (the "Indenture"), we hereby certify that (1) we are
the beneficial owner of such principal amount of Notes represented by the
Temporary Certificate and (2) we are a person outside the United States to whom
the Notes could be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933, as amended. Accordingly, you
are hereby requested to issue a Certificated Note representing the undersigned's
interest in the principal amount of Notes represented by the Temporary
Certificate, all in the manner provided by the Indenture.
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B-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
Authorized Signature
105
Exhibit C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
___________________, ____
Pueblo Xtra International, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
c/o
United States Trust Company
of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Re: Pueblo Xtra International, Inc. (the "Company")
9 1/2% Series B Senior Notes Due 2003 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $____________ aggregate
principal amount of the Notes:
1. We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act"), or an entity in which all of the
equity owners are accredited investors within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an
"Institutional Accredited Investor");
(ii) any purchase of the Notes by us will be for our own
account or for the account of one or more other Institutional
Accredited Investors;
106
C-2
(iii) in the event that we purchase any of the Notes, we will
acquire Notes having a minimum purchase price of not less than
$100,000 for our own account or for any separate account for which
we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and
risks of purchasing the Notes;
(v) we are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United
States or any other applicable jurisdictions, provided that the
disposition of our property and the property of any accounts for
which we are acting as fiduciary shall remain at all times within
our control;
(vi) we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to
purchase the Notes.
2. We understand that the Notes are being offered in a transaction
not involving any public offering within the meaning of the Securities Act
and that the Notes have not been registered under the Securities Act, and
we agree, on our own behalf and on behalf of each account for which we
acquire any Notes, that such Notes may be offered, resold, pledged or
otherwise transferred only (i) to a person whom we reasonably believe to
be a qualified institutional buyer (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A, in
a transaction meeting the requirements of Rule 144 under the Securities
Act or in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel
if the Company so requests), (ii) to the Company or (iii) pursuant to an
effective registration statement under the Securities Act, and, in each
case, in accordance with any applicable securities laws of any State of
the United States or any other applicable jurisdiction. We understand that
the registrar and transfer agent will not be required to accept for
registration of transfer any Notes, except upon presentation of evidence
satisfactory to the Company as applicable, that the foregoing
107
C-3
restrictions on transfer have been complied with. We further understand
that the Notes will be in the form of definitive physical certificates and
that any such certificates will bear a legend reflecting the substance of
this paragraph.
3. You are entitled to rely upon this letter and you 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,
By:
(NAME OF PURCHASER)
Date:
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
108
Exhibit D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_________________, ___
Pueblo Xtra International, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
c/o
United States Trust Company
of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Re: Pueblo Xtra International, Inc. (the "Company")
9 1/2% Series B Senior Notes Due 2003 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows
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D-2
that the transaction has been pre-arranged 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; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
